THE HIGH Court judicial review of State consents for the new Corrib gas pipeline route was the last outstanding legal action pursued by environmentalists and residents opposed to the project on health and safety grounds.
An Taisce has described yesterday’s settlement as a “victory”, while lead Corrib gas developer Shell EP Ireland has welcomed the clarity which this settlement . . . “provides for the project”.
However, residents of the area, such as Rossport farmers Willie and Mary Corduff, have expressed “deep disappointment” at the outcome.
“The State has admitted failures in its handling of the project, but it appears to be business as usual,” Pobal Chill Chomáin community group spokesman John Monaghan said.
“By the time promised new legislation is in place, the Corrib project will be built,” Mr Monaghan added. “It comes too late for us.”
The legal challenges taken by An Taisce and residents Monica Muller and Peter Sweetman related to the last section of the project, which is estimated to have run to €2.5 billion to date in tax-allowable costs.
In April 2003, An Bord Pleanála inspector Kevin Moore said that Ballinaboy was “the wrong location” for a project of this magnitude in a rural area.
However, that terminal has been built after protracted delays, and the offshore pipeline linking the wellhead 83km west of the Mayo coast has been laid into a landfall at Glengad.
The new pipeline route is the third such option – the first, through Rossport, having been withdrawn after the jailing of the Rossport Five and continued protests, and the second having been redrawn by the developers to avoid Rossport village.
Up to half of this second route was found to be unsafe due to proximity to housing by the planning board in 2009. It directed that the developers examine the third route up Sruwaddacon estuary, approved by it last January after another in a series of oral hearings.
There was never an overall review of the project in its entirety by State authorities, despite pleas by residents. However, former minister for energy Eamon Ryan transferred responsibility for the pipeline’s safety when built from his department to the Commission for Energy Regulation.
An Taisce’s main concern about this latest route was related to the fact that Sruwaddacon estuary is a protected habitat. However, local residents not party to the action still believe the new pipeline route is unsafe. Although it is further from some housing, they point out that it is within 700 metres of a national school at Pollathomas and close to dwellings at Glengad.
Central to the settlement is a pledge by the State to transpose European environmental law into national legislation. The State maintains its consents for the pipeline were valid.
“The critical objective for An Taisce is to ensure what happened in the Corrib project can never happen again,” An Taisce chairman Charles Stanley-Smith has said.
Shell said that the Corrib gas partners – Shell, Statoil and Vermilion – were strongly committed to completing this strategically important project which “has the potential to supply up to 60 per cent of Ireland’s natural gas needs”. The supply will be at full market price.
Irish Times
www.buckplanning.ie
Showing posts with label judicial review. Show all posts
Showing posts with label judicial review. Show all posts
Tuesday, 1 November 2011
Sunday, 16 October 2011
Three separate legal challenges to onshore Corrib gas pipe begin
Judicial review proceedings seeking to quash consents for the Corrib gas onshore pipeline open in the Commercial Court today, writes Lorna Siggins. The three separate challenges are being taken by An Taisce and two north Mayo residents.
Reviews have been granted for the planning permission approved last January by An Bord Pleanála for the latest pipeline route, and for consents issued by former minister for energy Pat Carey and current Minister for the Environment Phil Hogan for the pipeline. Shell EP Ireland is a notice party to the proceedings, as is Mayo County Council. An Taisce was last week granted leave for a judicial review of the foreshore licence issued by Mr Hogan this year, which will be heard.
Irish Times
www.buckplanning.ie
Reviews have been granted for the planning permission approved last January by An Bord Pleanála for the latest pipeline route, and for consents issued by former minister for energy Pat Carey and current Minister for the Environment Phil Hogan for the pipeline. Shell EP Ireland is a notice party to the proceedings, as is Mayo County Council. An Taisce was last week granted leave for a judicial review of the foreshore licence issued by Mr Hogan this year, which will be heard.
Irish Times
www.buckplanning.ie
Tuesday, 27 July 2010
Review of decision on landfill sought
AN APPLICATION is to be made to the High Court seeking a judicial review of the decision to grant a licence to Fingal County Council for a landfill site at Nevitt near Lusk in north Co Dublin.
Gemma Larkin of Walshtown, Lusk, Co Dublin, a member of the Nevitt Lusk Action Group (NLAG), is seeking a review of the decision by the Environmental Protection Agency (EPA) in May this year to grant a licence for the landfill site.
The 300,000-tonne capacity landfill site, in which an estimated one-sixth of the State’s waste is to be dumped, is subject to more than 250 conditions relating to environment management operation, control and monitoring.
It was one of the most contested developments in Irish planning history, and the EPA held two public hearings about the site. The action group has already referred the agency’s decision to the European Commission and the European Petitions committee.
Papers are to be lodged today with the High Court, while the EPA, Fingal County Council and the Department of Environment, as notice parties to the case, have been informed of the application, being made on four grounds.
Ms Larkin said the licence granted contravenes the EU ground-water directive and would destroy ground-water in the area, a major horticulture location.
The applicant also says “bottom ash” – the residue after incineration from the Poolbeg incinerator complex at Ringsend – will be exported to Fingal. Ms Larkin claimed the original intention was to temporarily store bottom ash at Lusk and treat it to make it safe.
She claimed bottom ash from incineration has never been landfilled before and requires a strategic environmental assessment, but that there had been no investigations or examinations, and no review had been made of how it would be transported or what environmental effect that transportation would have.
Ms Larkin also claims the existing landfill site at Lusk is unauthorised and has not been properly remediated for use as landfill.
The applicant also alleges that the Aarhaus Convention, which obliges member states to allow citizens access to justice at reasonable cost, has not been implemented through legislation by the State. Ms Larkin said the convention allows concerned citizens to take legal action at reasonable cost, but such cases in Ireland can take years and cost millions.
Provision is being made to allow citizens to bring proceedings on issues of public interest where they would not face paying the State’s charges if they lost, but would still have to pay their own costs.
Irish Times
www.buckplanning.ie
Gemma Larkin of Walshtown, Lusk, Co Dublin, a member of the Nevitt Lusk Action Group (NLAG), is seeking a review of the decision by the Environmental Protection Agency (EPA) in May this year to grant a licence for the landfill site.
The 300,000-tonne capacity landfill site, in which an estimated one-sixth of the State’s waste is to be dumped, is subject to more than 250 conditions relating to environment management operation, control and monitoring.
It was one of the most contested developments in Irish planning history, and the EPA held two public hearings about the site. The action group has already referred the agency’s decision to the European Commission and the European Petitions committee.
Papers are to be lodged today with the High Court, while the EPA, Fingal County Council and the Department of Environment, as notice parties to the case, have been informed of the application, being made on four grounds.
Ms Larkin said the licence granted contravenes the EU ground-water directive and would destroy ground-water in the area, a major horticulture location.
The applicant also says “bottom ash” – the residue after incineration from the Poolbeg incinerator complex at Ringsend – will be exported to Fingal. Ms Larkin claimed the original intention was to temporarily store bottom ash at Lusk and treat it to make it safe.
She claimed bottom ash from incineration has never been landfilled before and requires a strategic environmental assessment, but that there had been no investigations or examinations, and no review had been made of how it would be transported or what environmental effect that transportation would have.
Ms Larkin also claims the existing landfill site at Lusk is unauthorised and has not been properly remediated for use as landfill.
The applicant also alleges that the Aarhaus Convention, which obliges member states to allow citizens access to justice at reasonable cost, has not been implemented through legislation by the State. Ms Larkin said the convention allows concerned citizens to take legal action at reasonable cost, but such cases in Ireland can take years and cost millions.
Provision is being made to allow citizens to bring proceedings on issues of public interest where they would not face paying the State’s charges if they lost, but would still have to pay their own costs.
Irish Times
www.buckplanning.ie
Sunday, 7 February 2010
Court rules hospital needs parking
An Bord Pleanála was entitled to turn down a development in Dún Laoghaire as it would mean the loss of parking spaces for the local hospital, the High Court has ruled.
Wexele, Sandyford, Dublin, lost its challenge yesterday to a board decision of July 14th, 2008, refusing permission for 80 apartments and two retail units at a site on Crofton Road which was used as a car park for St Michael’s hospital by staff and patients. Wexele bought the three-quarter acre site from the hospital, along with a former nurses’ residence, in December 2006.
Mr Justice Peter Charleton ruled that 110 parking spaces which would be lost to the hospital were essential for its operation. He said any development of the site should accommodate the hospital “based on a common-sense approach and a planning policy one”.
Irish Times
www.buckplanning.ie
Wexele, Sandyford, Dublin, lost its challenge yesterday to a board decision of July 14th, 2008, refusing permission for 80 apartments and two retail units at a site on Crofton Road which was used as a car park for St Michael’s hospital by staff and patients. Wexele bought the three-quarter acre site from the hospital, along with a former nurses’ residence, in December 2006.
Mr Justice Peter Charleton ruled that 110 parking spaces which would be lost to the hospital were essential for its operation. He said any development of the site should accommodate the hospital “based on a common-sense approach and a planning policy one”.
Irish Times
www.buckplanning.ie
Wednesday, 3 February 2010
Principle of proportion integrated into judicial reviews
The recent Supreme Court judgment on judicial review means an applicant's fundamental rights must be considered if they are at stake in the decision, writes CAROL COULTER
ASYLUM JUDICIAL reviews have come to dominate the judicial review list, with 785 such cases in 2008, down from 1,024 cases the previous year.
Though preliminary figures for 2009 indicate a further slight fall, it is understandable that there would be concern that any relaxation of the test for admitting judicial reviews would increase these numbers.
This fear was expressed by the two judges who gave minority judgments in the recent Abosede Aunwatoyn Meadows case.
Mr Justice Hardiman and Mr Justice Kearns stated that the existing test for leave to take judicial review proceedings, as outlined in O'Keeffe -v- An Bord Pleanála , should not be modified.
The majority - the Chief Justice, Mr Justice Murray, Mrs Justice Denham and Mr Justice Fennelly - granted Ms Meadows leave to judicially review the Minister's decision, but found this to be compatible with the O'Keeffe judgment.
The Nigerian applicant had challenged a High Court refusal to grant leave for judicial review of a deportation order made after her asylum application had been refused both by the Office of Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal.
The two decision-making bodies, ORAC and the RAT, had concluded that she had not established a credible connection between her circumstances and the threat of female genital mutilation (FGM).
Their decisions had not been challenged, though the decisions of both bodies frequently are the subject of judicial review.
She had then sought leave to remain in the State on humanitarian grounds, arguing her rights under Article 3 of the European Convention on Human Rights (prohibition on torture) were under threat, and that she was at risk of serious assault - FGM - were she to be returned to Nigeria.
She had submitted extensive additional material on incidence of FGM in Nigeria to the Minister for Justice in support of her application to remain on humanitarian grounds.
This argument is separate from an asylum application, where under Section 5 of the 1996 Refugee Act (prohibition of refoulement), a person may be allowed to remain in the State even if they do not qualify for recognition as a refugee if there is a risk to their life or freedom on a number of specified grounds, or a risk of serious assault.
In rejecting her application, the Minister stated that the provisions of Section 5 had been complied with. He did not respond specifically to the material she had submitted, or her claim to be personally under threat.
In challenging the deportation order, her counsel argued that the "anxious scrutiny" test adopted in England should be applied. In a number of English cases since 1987 it was argued successfully that there should be enhanced scrutiny of administrative decisions that impacted on a person's rights, beyond the existing test of "unreasonableness".
Mr Justice Hardiman considered that this would introduce a two-tier standard for judicial reviews, one for cases thought to involve constitutional or other fundamental rights, and a higher or more demanding one for those which did not, where the "unreasonableness" of the decision would have to be established.
He rejected the applicability of "proportionality" to judicial review of a decision of this kind, though he acknowledged it was appropriate to determining whether a statutory provision was compatible with the Constitution. He also rejected the argument that the Minister was required to give detailed reasons for his decision.
Giving one of the majority judgments, Mr Justice Murray considered that it was appropriate to consider proportionality. "Where there are grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision, the more substantial must be the countervailing considerations that justify it."
Citing the Fajujonu case, he stressed that there was nothing new in considering the principle of proportionality in such cases, and that it "may be applied for the purpose of determining whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from the premises on which it is based and be in accord with fundamental reason and common sense." This was in accordance with the principles of Keegan and O'Keeffe , he said.
Granting leave, he said: "An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken." Otherwise the right of access to the courts to have a decision reviewed would be so circumscribed as to be "unacceptably ineffective".
Mr Justice Fennelly said: "The difficulty posed by the form of the Minister's decision is not merely his failure to provide reason for his decision, though that is undoubtedly the case, but that the decision is defective as a result.
"There is a complaint of a serious risk of exposure to what is arguably an infringement of life or freedom (as defined in section 5 of the Refugee Act, 1995) and nothing on the other side, nothing to explain how the Minister came to the conclusion that the appellant should, nonetheless, be deported.
"The Minister might have had any one of a range of reasons for his decision, but the court simply does not know."
After examining jurisprudence of the European Court of Human Rights on judicial review in relation to the UK experience, and referring to the question posed by the appellant on the adequacy of the O'Keeffe and Keegan test, Mr Justice Fennelly said: "I do not consider it necessary to change the test.
"Properly understood, it is capable of according an appropriate level of protection of fundamental rights."
What this judgment does is explicitly integrate the principle of proportionality into the existing law on judicial review, though Mr Justice Murray stated it was already implicitly there.
It does not provide the basis for challenges to future deportation orders made after a person has sought to remain in Ireland on humanitarian grounds, provided that the application is considered and the reasons for rejecting it are outlined, and it is not a mere rubber-stamping of the earlier refusal of refugee status.
A general statement of policy considerations, or that the relevant section of the Act has been taken into account without saying how, will no longer be sufficient for refusal of leave to remain.
While this will impose additional demands on the Minister's officials, they are not unduly onerous, and will help ensure that the highest and most transparent standards are applied in dealing with asylum applicants.
If they are, it should reduce the number of judicial reviews sought.
Irish Times
www.buckplanning.ie
ASYLUM JUDICIAL reviews have come to dominate the judicial review list, with 785 such cases in 2008, down from 1,024 cases the previous year.
Though preliminary figures for 2009 indicate a further slight fall, it is understandable that there would be concern that any relaxation of the test for admitting judicial reviews would increase these numbers.
This fear was expressed by the two judges who gave minority judgments in the recent Abosede Aunwatoyn Meadows case.
Mr Justice Hardiman and Mr Justice Kearns stated that the existing test for leave to take judicial review proceedings, as outlined in O'Keeffe -v- An Bord Pleanála , should not be modified.
The majority - the Chief Justice, Mr Justice Murray, Mrs Justice Denham and Mr Justice Fennelly - granted Ms Meadows leave to judicially review the Minister's decision, but found this to be compatible with the O'Keeffe judgment.
The Nigerian applicant had challenged a High Court refusal to grant leave for judicial review of a deportation order made after her asylum application had been refused both by the Office of Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal.
The two decision-making bodies, ORAC and the RAT, had concluded that she had not established a credible connection between her circumstances and the threat of female genital mutilation (FGM).
Their decisions had not been challenged, though the decisions of both bodies frequently are the subject of judicial review.
She had then sought leave to remain in the State on humanitarian grounds, arguing her rights under Article 3 of the European Convention on Human Rights (prohibition on torture) were under threat, and that she was at risk of serious assault - FGM - were she to be returned to Nigeria.
She had submitted extensive additional material on incidence of FGM in Nigeria to the Minister for Justice in support of her application to remain on humanitarian grounds.
This argument is separate from an asylum application, where under Section 5 of the 1996 Refugee Act (prohibition of refoulement), a person may be allowed to remain in the State even if they do not qualify for recognition as a refugee if there is a risk to their life or freedom on a number of specified grounds, or a risk of serious assault.
In rejecting her application, the Minister stated that the provisions of Section 5 had been complied with. He did not respond specifically to the material she had submitted, or her claim to be personally under threat.
In challenging the deportation order, her counsel argued that the "anxious scrutiny" test adopted in England should be applied. In a number of English cases since 1987 it was argued successfully that there should be enhanced scrutiny of administrative decisions that impacted on a person's rights, beyond the existing test of "unreasonableness".
Mr Justice Hardiman considered that this would introduce a two-tier standard for judicial reviews, one for cases thought to involve constitutional or other fundamental rights, and a higher or more demanding one for those which did not, where the "unreasonableness" of the decision would have to be established.
He rejected the applicability of "proportionality" to judicial review of a decision of this kind, though he acknowledged it was appropriate to determining whether a statutory provision was compatible with the Constitution. He also rejected the argument that the Minister was required to give detailed reasons for his decision.
Giving one of the majority judgments, Mr Justice Murray considered that it was appropriate to consider proportionality. "Where there are grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision, the more substantial must be the countervailing considerations that justify it."
Citing the Fajujonu case, he stressed that there was nothing new in considering the principle of proportionality in such cases, and that it "may be applied for the purpose of determining whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from the premises on which it is based and be in accord with fundamental reason and common sense." This was in accordance with the principles of Keegan and O'Keeffe , he said.
Granting leave, he said: "An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken." Otherwise the right of access to the courts to have a decision reviewed would be so circumscribed as to be "unacceptably ineffective".
Mr Justice Fennelly said: "The difficulty posed by the form of the Minister's decision is not merely his failure to provide reason for his decision, though that is undoubtedly the case, but that the decision is defective as a result.
"There is a complaint of a serious risk of exposure to what is arguably an infringement of life or freedom (as defined in section 5 of the Refugee Act, 1995) and nothing on the other side, nothing to explain how the Minister came to the conclusion that the appellant should, nonetheless, be deported.
"The Minister might have had any one of a range of reasons for his decision, but the court simply does not know."
After examining jurisprudence of the European Court of Human Rights on judicial review in relation to the UK experience, and referring to the question posed by the appellant on the adequacy of the O'Keeffe and Keegan test, Mr Justice Fennelly said: "I do not consider it necessary to change the test.
"Properly understood, it is capable of according an appropriate level of protection of fundamental rights."
What this judgment does is explicitly integrate the principle of proportionality into the existing law on judicial review, though Mr Justice Murray stated it was already implicitly there.
It does not provide the basis for challenges to future deportation orders made after a person has sought to remain in Ireland on humanitarian grounds, provided that the application is considered and the reasons for rejecting it are outlined, and it is not a mere rubber-stamping of the earlier refusal of refugee status.
A general statement of policy considerations, or that the relevant section of the Act has been taken into account without saying how, will no longer be sufficient for refusal of leave to remain.
While this will impose additional demands on the Minister's officials, they are not unduly onerous, and will help ensure that the highest and most transparent standards are applied in dealing with asylum applicants.
If they are, it should reduce the number of judicial reviews sought.
Irish Times
www.buckplanning.ie
Sunday, 17 January 2010
Judicial review in right of way dispute
THE ROW over a disputed right of way at Doonbeg golf course has taken another twist with the High Court granting a judicial review of Clare County Council’s decision to extinguish the right of way.
Long-time opponent of plans to extinguish the right of way James McNulty has been being granted the review against councillors voting to extinguish the right of way across the Greg Norman-designed golf course.
At a council meeting last September, councillors voted 22 to three in favour of extinguishing the right of way. The move ended the public’s ability to walk across the fourth and 14th fairways at Doonbeg golf course.
The councillors’ decision provided for an alternative right of way to be located a short distance from the existing one.
The plan also involved the golf club constructing a car park that will be used predominantly by surfers.
In his claim Mr McNulty is seeking a court order quashing the council’s decision and a declaration that the council, in extinguishing the right of way, was acting beyond its powers.
Mr McNulty’s move is the latest twist in the current dispute dating back six years, which was sparked by the golf club building a six-foot wall across the right of way.
The golf club instituted its own High Court judicial review proceedings of a Bord Pleanála decision ruling that the golf club acted illegally in building the wall without planning permission.
The proceedings were struck out with no order last October following the councillors giving the go-ahead to the extinguishment.
Cllr PJ Kelly (FF), who opposed the extinguishing of the right of way, said yesterday: “It was inevitable that the decision to extinguish the right of way would be legally challenged because of the clumsy way in which the council handled the matter.”
Cllr Pat Keane (FF) was one of the 22 councillors who voted in favour of the proposal. He said yesterday: “It is disappointing that the decision has been challenged, but anyone is entitled to do so. I would hope that the case can be dealt with quickly.”
The council has yet to file its response to Mr McNulty. A spokesman for the council said it was not in a position to respond at this stage.
Irish Times
www.buckplanning.ie
Long-time opponent of plans to extinguish the right of way James McNulty has been being granted the review against councillors voting to extinguish the right of way across the Greg Norman-designed golf course.
At a council meeting last September, councillors voted 22 to three in favour of extinguishing the right of way. The move ended the public’s ability to walk across the fourth and 14th fairways at Doonbeg golf course.
The councillors’ decision provided for an alternative right of way to be located a short distance from the existing one.
The plan also involved the golf club constructing a car park that will be used predominantly by surfers.
In his claim Mr McNulty is seeking a court order quashing the council’s decision and a declaration that the council, in extinguishing the right of way, was acting beyond its powers.
Mr McNulty’s move is the latest twist in the current dispute dating back six years, which was sparked by the golf club building a six-foot wall across the right of way.
The golf club instituted its own High Court judicial review proceedings of a Bord Pleanála decision ruling that the golf club acted illegally in building the wall without planning permission.
The proceedings were struck out with no order last October following the councillors giving the go-ahead to the extinguishment.
Cllr PJ Kelly (FF), who opposed the extinguishing of the right of way, said yesterday: “It was inevitable that the decision to extinguish the right of way would be legally challenged because of the clumsy way in which the council handled the matter.”
Cllr Pat Keane (FF) was one of the 22 councillors who voted in favour of the proposal. He said yesterday: “It is disappointing that the decision has been challenged, but anyone is entitled to do so. I would hope that the case can be dealt with quickly.”
The council has yet to file its response to Mr McNulty. A spokesman for the council said it was not in a position to respond at this stage.
Irish Times
www.buckplanning.ie
Monday, 21 July 2008
Planning refusal upheld by High Court
Cicol Ltd -v- An Bord Pleanála HIGH COURT Judgment was given by Ms Justice Irvine on May 8th, 2008
JUDGMENT
An Bord Pleanála was correct in refusing planning permission to a proposed residential/commercial development on land known as "Dudley's Field" beside Airfield Estate in Dundrum, Dublin, on the grounds that it contravened the Development Plan and was contrary to the proper planning and development of the area.
BACKGROUND
The applicant - the development company Cicol - was the owner of the land in question, which it bought from the Airfield estate in 2005. It sought planning permission for a development consisting of 62 residential units in five apartment blocks, each of which was to be five storeys in height; a two-storey leisure building housing an indoor recreation centre, a health spa and a creche.
When the planning application was made to Dún Laoghaire-Rathdown County Council, the planning official stated that the open areas and recreational and sports facilities fell within the categories of uses which were "permitted in principle", but that the proposed residential component of the development would materially contravene the Development Plan because of its quantum, density and plot ratio.
Nonetheless, the director of Economic Development and Planning for the council, Michael Gough, recommended that permission be granted, which it was, subject to conditions.
An appeal against the permission was lodged by seven third parties, including two residents' associations and a local school.
An Bord Pleanála appointed an inspector to prepare a report. She submitted this in August 2007, recommending the refusal of planning permission. She said the existing open space use of the site would be radically altered; the transformation of an open field into a development of five five-storey apartment blocks was a radical deviation from its current use which amounted to a material contravention of the Development Plan. The board met and refused permission, in accordance with her recommendation.
The applicant sought to judicially review this decision in the High Court.
The court first decided to grant leave to bring the proceedings, on the grounds that the applicant had a substantial interest in the proceedings and therefore had locus standi. Ms Justice Irvine also considered that the applicant had substantial arguments to make, and went on to consider these.
The applicant put forward five arguments for consideration by the court:
1. Did the board comply with its statutory obligations to "state the main reasons and considerations" on which its decision was based?
2. Did it give appropriate weight to the manner in which the planning authority had interpreted its own Development Plan at the time of granting planning permission?
3. Did it adequately have regard to the following considerations: the local objective to "encourage the retention and development of Airfield Estate for educational, recreational and cultural uses", and uses of land which were "permitted in principle" and/or "open for consideration" under the Development Plan?
4. Should it have, and did it consider the applicant's proposal by reference to the entirety of the lands adjoining the site? If it should have considered the entirety of the lands, was the board wrong in concluding that the proposed development was a material contravention of the Development Plan?
5. Should the board have considered whether the development ought to have been permitted, even if it contravened the Development Plan?
DECISION
Ms Justice Irvine began by considering the function of Development Plans in general and how they should be constructed, and Dún Laoghaire-Rathdown Development Plan in particular. Having considered the case-law, she said: "[ They] should be properly construed in their ordinary meaning as would be understood by members of the public."
In the Dún Laoghaire-Rathdown Development Plan, Airfield Estate, including "Dudley's Field", is zoned "F", for use as open space, and is an urban farm, which had been singled out by the local authority for special attention. The land zoned "F" permits certain uses under the headings "permitted in principle" and "open for consideration". The former includes community facility, cultural use, open space, recreational facilities/sports clubs, travellers' accommodation, and the latter includes agricultural buildings, caravan park or car park, cemetery, creche, recreational, residential, restaurant or shop use.
However, these possible uses of the land would also be subject to other considerations, such as the most efficient use of land, density, height, massing, traffic generation, public health regulations, design criteria, visual amenity and others, she said.
Considering whether the board had stated "the main reasons and considerations" for its decision, Ms Justice Irvine said that where the board's decision is different from its inspector's recommendation, it is obliged to indicate the main reasons for not accepting such recommendation. However, here the board accepted the recommendation of its inspector, Ms Coogan, having duly considered it, as it was obliged to do.
"I believe that the board has cross-referenced its decision to the inspector's report in terms of the matters which it considered prior to reaching its decision and that it thereby complied with its statutory obligations," Ms Justice Irvine said.
Considering whether the board attached appropriate weight to the manner in which the planning authority had interpreted its own Development Plan, she said that the inspector had made it very clear that there were opposing views as to the proper construction of the Development Plan.
However, she said no primacy could be given to a planning authority's interpretation of its Development Plan. "If special primacy were to be afforded to the local authority's interpretation of its own Development Plan, it is difficult to see how any party could mount a challenge to a decision made by the local authority and successfully claim that a proposed development was in contravention of the Development Plan."
Turning to the question of examining the proposed development in the context of the overall use of Airfield Estate, she said it had been argued that the purchase price paid for "Dudley's Field" would copperfasten the future development of Airfield.
However, she said no evidence was put before the inspector or the board regarding the financial status of Airfield Trust at the time of the sale of Dudley's Field. Further, there was no assertion that the sale of the field was subject to planning permission.
Considering whether the board had adequately examined the question of development "permitted in principle" and "open for consideration", she said there was no doubt that the proposed development was primarily for residential and mixed commercial use, and an ordinary member of the public, reading the Development Plan, would not consider the proposal to be one principally devoted to the provision of open space and recreational amenity.
Turning to whether the proposal had been considered in the overall context of the entirety of lands adjoining the site, which would remain open land, she said that the original planning application had been made on the basis that Dudley's Field should be seen as a separate entity from the Airfield Estate.
Finally, Ms Justice Irvine considered whether the board should have granted the permission, even if it contravened the Development Plan. She said that the basis on which the applicant sought planning permission was that it was consistent with the plan, and did not make any argument for the development if it constituted a material contravention.
"I believe the applicant is stopped from now complaining that the board did not consider granting full planning permission or some limited planning permission, having concluded that the development . . . was in material contravention of the Development Plan," she said.
Accordingly, she said she was satisfied that the board's decision, as a matter of law, was one which was correct.
The full text of this judgment is available on www.courts.ie
Maurice Collins SC and Michael O'Donnell BL, instructed by O'Donnell Sweeney Eversheds, Dublin (for the applicant); Nuala Butler SC, Oran Doyle BL, instructed by Barry Doyle & Co, Merchants Quay, Dublin (for the respondent)
The Irish Times
www.buckplanning.ie
JUDGMENT
An Bord Pleanála was correct in refusing planning permission to a proposed residential/commercial development on land known as "Dudley's Field" beside Airfield Estate in Dundrum, Dublin, on the grounds that it contravened the Development Plan and was contrary to the proper planning and development of the area.
BACKGROUND
The applicant - the development company Cicol - was the owner of the land in question, which it bought from the Airfield estate in 2005. It sought planning permission for a development consisting of 62 residential units in five apartment blocks, each of which was to be five storeys in height; a two-storey leisure building housing an indoor recreation centre, a health spa and a creche.
When the planning application was made to Dún Laoghaire-Rathdown County Council, the planning official stated that the open areas and recreational and sports facilities fell within the categories of uses which were "permitted in principle", but that the proposed residential component of the development would materially contravene the Development Plan because of its quantum, density and plot ratio.
Nonetheless, the director of Economic Development and Planning for the council, Michael Gough, recommended that permission be granted, which it was, subject to conditions.
An appeal against the permission was lodged by seven third parties, including two residents' associations and a local school.
An Bord Pleanála appointed an inspector to prepare a report. She submitted this in August 2007, recommending the refusal of planning permission. She said the existing open space use of the site would be radically altered; the transformation of an open field into a development of five five-storey apartment blocks was a radical deviation from its current use which amounted to a material contravention of the Development Plan. The board met and refused permission, in accordance with her recommendation.
The applicant sought to judicially review this decision in the High Court.
The court first decided to grant leave to bring the proceedings, on the grounds that the applicant had a substantial interest in the proceedings and therefore had locus standi. Ms Justice Irvine also considered that the applicant had substantial arguments to make, and went on to consider these.
The applicant put forward five arguments for consideration by the court:
1. Did the board comply with its statutory obligations to "state the main reasons and considerations" on which its decision was based?
2. Did it give appropriate weight to the manner in which the planning authority had interpreted its own Development Plan at the time of granting planning permission?
3. Did it adequately have regard to the following considerations: the local objective to "encourage the retention and development of Airfield Estate for educational, recreational and cultural uses", and uses of land which were "permitted in principle" and/or "open for consideration" under the Development Plan?
4. Should it have, and did it consider the applicant's proposal by reference to the entirety of the lands adjoining the site? If it should have considered the entirety of the lands, was the board wrong in concluding that the proposed development was a material contravention of the Development Plan?
5. Should the board have considered whether the development ought to have been permitted, even if it contravened the Development Plan?
DECISION
Ms Justice Irvine began by considering the function of Development Plans in general and how they should be constructed, and Dún Laoghaire-Rathdown Development Plan in particular. Having considered the case-law, she said: "[ They] should be properly construed in their ordinary meaning as would be understood by members of the public."
In the Dún Laoghaire-Rathdown Development Plan, Airfield Estate, including "Dudley's Field", is zoned "F", for use as open space, and is an urban farm, which had been singled out by the local authority for special attention. The land zoned "F" permits certain uses under the headings "permitted in principle" and "open for consideration". The former includes community facility, cultural use, open space, recreational facilities/sports clubs, travellers' accommodation, and the latter includes agricultural buildings, caravan park or car park, cemetery, creche, recreational, residential, restaurant or shop use.
However, these possible uses of the land would also be subject to other considerations, such as the most efficient use of land, density, height, massing, traffic generation, public health regulations, design criteria, visual amenity and others, she said.
Considering whether the board had stated "the main reasons and considerations" for its decision, Ms Justice Irvine said that where the board's decision is different from its inspector's recommendation, it is obliged to indicate the main reasons for not accepting such recommendation. However, here the board accepted the recommendation of its inspector, Ms Coogan, having duly considered it, as it was obliged to do.
"I believe that the board has cross-referenced its decision to the inspector's report in terms of the matters which it considered prior to reaching its decision and that it thereby complied with its statutory obligations," Ms Justice Irvine said.
Considering whether the board attached appropriate weight to the manner in which the planning authority had interpreted its own Development Plan, she said that the inspector had made it very clear that there were opposing views as to the proper construction of the Development Plan.
However, she said no primacy could be given to a planning authority's interpretation of its Development Plan. "If special primacy were to be afforded to the local authority's interpretation of its own Development Plan, it is difficult to see how any party could mount a challenge to a decision made by the local authority and successfully claim that a proposed development was in contravention of the Development Plan."
Turning to the question of examining the proposed development in the context of the overall use of Airfield Estate, she said it had been argued that the purchase price paid for "Dudley's Field" would copperfasten the future development of Airfield.
However, she said no evidence was put before the inspector or the board regarding the financial status of Airfield Trust at the time of the sale of Dudley's Field. Further, there was no assertion that the sale of the field was subject to planning permission.
Considering whether the board had adequately examined the question of development "permitted in principle" and "open for consideration", she said there was no doubt that the proposed development was primarily for residential and mixed commercial use, and an ordinary member of the public, reading the Development Plan, would not consider the proposal to be one principally devoted to the provision of open space and recreational amenity.
Turning to whether the proposal had been considered in the overall context of the entirety of lands adjoining the site, which would remain open land, she said that the original planning application had been made on the basis that Dudley's Field should be seen as a separate entity from the Airfield Estate.
Finally, Ms Justice Irvine considered whether the board should have granted the permission, even if it contravened the Development Plan. She said that the basis on which the applicant sought planning permission was that it was consistent with the plan, and did not make any argument for the development if it constituted a material contravention.
"I believe the applicant is stopped from now complaining that the board did not consider granting full planning permission or some limited planning permission, having concluded that the development . . . was in material contravention of the Development Plan," she said.
Accordingly, she said she was satisfied that the board's decision, as a matter of law, was one which was correct.
The full text of this judgment is available on www.courts.ie
Maurice Collins SC and Michael O'Donnell BL, instructed by O'Donnell Sweeney Eversheds, Dublin (for the applicant); Nuala Butler SC, Oran Doyle BL, instructed by Barry Doyle & Co, Merchants Quay, Dublin (for the respondent)
The Irish Times
www.buckplanning.ie
Tuesday, 27 May 2008
Court challenge to €500m gas facility
A €500 MILLION liquified natural gas facility, which was the first project to be "fast tracked" under the 2006 Strategic Infrastructure Act, may now be held up by legal actions that have been filed in the High Court.
The Kilcolgan Residents' Association and the Friends of the Irish Environment have each lodged proceedings against the decision by An Bórd Pleanála to grant planning permission to Shannon LNG to build a terminal near Tarbert, Co Kerry, in the Shannon Estuary.
Permission was granted in April after an application was lodged directly in September 2007 to An Bord Pleanála, rather than to the local planning authority, as would normally be the case.
A spokesman for Shannon LNG had no comment to make when contacted yesterday. The company is a subsidiary of the Hess LNG group in the US.
The residents' association said it was seeking a judicial review on safety, environmental and procedural grounds. No emergency plan exists for the proposed development and no marine risk assessment has been completed, it said. It also said that, during an oral hearing on the planning application held in Tralee in January, it was revealed that Kerry County Council had refused to undertake a strategic environmental assessment before rezoning the site industrial. It said this was contrary to Irish and European law.
The respondents in the case are An Bord Pleanála and the Health and Safety Authority.
Friends of the Irish Environment said it was seeking a judicial review and that the decision by An Bord Pleanála infringed "at least" five EU directives.
The plan for the terminal was first announced in May 2006. It is envisaged by Shannon LNG that construction of the facility will take three years from when construction work begins.
The terminal is to be constructed on 281 acres of 600 acres of Shannon Development owned land between Tarbert and Ballylongford, Co Kerry.
The site, which has been designated by Shannon Development for deep-water projects, is about 25 km from the national gas pipeline grid.
The terminal will provide about 50 long-term jobs and 350 jobs on average over the life of the construction programme, according to Shannon LNG.
At the time permission was granted for the development, Shannon LNG said it was conscious that the proposed development would be one of the largest construction projects to take place in the north Kerry region.
"We will progress the development in ongoing consultation with the local community in order to minimise inconvenience and disturbance. Once operational, the terminal will be a very quiet and clean facility," it said.
About 60 per cent of Ireland's electricity is generated using natural gas. The proposed terminal will allow Ireland to access multiple sources of gas from around the world, delivering greater security and diversity of energy supply, according to Shannon LNG.
Liquified natural gas is gas converted to liquid by reducing it to below minus 160 degrees. This reduces the volume of the gas and makes it suitable for transportation by sea.
The Irish Times
www.buckplanning.ie
The Kilcolgan Residents' Association and the Friends of the Irish Environment have each lodged proceedings against the decision by An Bórd Pleanála to grant planning permission to Shannon LNG to build a terminal near Tarbert, Co Kerry, in the Shannon Estuary.
Permission was granted in April after an application was lodged directly in September 2007 to An Bord Pleanála, rather than to the local planning authority, as would normally be the case.
A spokesman for Shannon LNG had no comment to make when contacted yesterday. The company is a subsidiary of the Hess LNG group in the US.
The residents' association said it was seeking a judicial review on safety, environmental and procedural grounds. No emergency plan exists for the proposed development and no marine risk assessment has been completed, it said. It also said that, during an oral hearing on the planning application held in Tralee in January, it was revealed that Kerry County Council had refused to undertake a strategic environmental assessment before rezoning the site industrial. It said this was contrary to Irish and European law.
The respondents in the case are An Bord Pleanála and the Health and Safety Authority.
Friends of the Irish Environment said it was seeking a judicial review and that the decision by An Bord Pleanála infringed "at least" five EU directives.
The plan for the terminal was first announced in May 2006. It is envisaged by Shannon LNG that construction of the facility will take three years from when construction work begins.
The terminal is to be constructed on 281 acres of 600 acres of Shannon Development owned land between Tarbert and Ballylongford, Co Kerry.
The site, which has been designated by Shannon Development for deep-water projects, is about 25 km from the national gas pipeline grid.
The terminal will provide about 50 long-term jobs and 350 jobs on average over the life of the construction programme, according to Shannon LNG.
At the time permission was granted for the development, Shannon LNG said it was conscious that the proposed development would be one of the largest construction projects to take place in the north Kerry region.
"We will progress the development in ongoing consultation with the local community in order to minimise inconvenience and disturbance. Once operational, the terminal will be a very quiet and clean facility," it said.
About 60 per cent of Ireland's electricity is generated using natural gas. The proposed terminal will allow Ireland to access multiple sources of gas from around the world, delivering greater security and diversity of energy supply, according to Shannon LNG.
Liquified natural gas is gas converted to liquid by reducing it to below minus 160 degrees. This reduces the volume of the gas and makes it suitable for transportation by sea.
The Irish Times
www.buckplanning.ie
Saturday, 3 May 2008
Criteria for challenges to planning decisions clarified
THE SUPREME Court has clarified some of the criteria upon which planning decisions may be challenged in judicial review proceedings. The clarifications came in a judgment yesterday rejecting a bid by a retired sailor to challenge permission for a €400 million tourism resort centre at the entrance to Kinsale harbour.
However, the Chief Justice, Mr Justice John Murray, criticised the "vague" and "imprecise" nature of provisions of the Planning and Development Act aimed at limiting such judicial review challenges.
The decision means Thomas Harding, Arback Heights, Kinsale, Co Cork, cannot bring a judicial review case aimed at overturning planning permission, subject to 72 conditions, from Cork County Council in October 2005 to Kinsale Development Ltd, Ballyvolane Business, Cork, to build the resort at Preghane, Ballmacus, Kinsale.
Mr Harding had claimed the development should not be permitted because of its proposed location in a scenic landscape, and a proposed natural heritage area overlooking Kinsale harbour.
The three-judge court, in separate judgments, found Mr Harding had failed to show he had the "substantial interest" in the Kinsale development required under section 50 of the Act as a precondition before leave may be granted to bring the judicial review challenge.
The case raised important issues about the construction of provisions of section 50 related to the criteria necessary to establish a "substantial interest". The High Court, while refusing leave to Mr Harding to bring the challenge, had asked the Supreme Court to consider the criteria necessary for "substantial interest" to be shown.
Mr Harding had claimed to have a "substantial interest" in the proposed resort because of its effect on the local environment and the headland, where he had family connections and visited regularly, and in vindication of his right to participate in the planning process.
In his judgment, Mr Justice Murray said the test laid down by the Oireachtas in section 50 of the Act as to what constituted "substantial interest" was "vague and lacking in precision" and that it was being left to the courts to interpret.
Not for the first time, legislation seeking to limit litigation was drawn up in "imprecise" terms likely to generate more and not less litigation for already heavily- burdened courts, he said.
Mr Justice Nicholas Kearns, in a judgment with which Mr Justice Murray and Mr Justice Joseph Finnegan agreed, ruled that Mr Harding must show he had an interest in the development which was "peculiar and personal" to him and that his interest was "significant and weighty".
Mr Justice Kearns found Mr Harding had not established a substantial interest by reason of his claimed interest in the impact of the proposed development from an environmental perspective.
He agreed with the High Court that Mr Harding had established a sufficient connection with the area and that his concerns about the development of the headland were genuine, but the test of substantial interest required more than a familial connection coupled with a pattern of visiting it as a former native and as a seafaring person.
Mr Justice Kearns earlier noted that section 50, by requiring "substantial interest" rather than the previous standard of "sufficient interest", had significantly heightened the bar for objectors or aggrieved parties who wished to take judicial review proceedings.
The 2000 Act had established "onerous conditions" and "numerous hurdles" for objectors to clear before obtaining leave, and may be seen as "expressly underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible", he said.
The Irish Times
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However, the Chief Justice, Mr Justice John Murray, criticised the "vague" and "imprecise" nature of provisions of the Planning and Development Act aimed at limiting such judicial review challenges.
The decision means Thomas Harding, Arback Heights, Kinsale, Co Cork, cannot bring a judicial review case aimed at overturning planning permission, subject to 72 conditions, from Cork County Council in October 2005 to Kinsale Development Ltd, Ballyvolane Business, Cork, to build the resort at Preghane, Ballmacus, Kinsale.
Mr Harding had claimed the development should not be permitted because of its proposed location in a scenic landscape, and a proposed natural heritage area overlooking Kinsale harbour.
The three-judge court, in separate judgments, found Mr Harding had failed to show he had the "substantial interest" in the Kinsale development required under section 50 of the Act as a precondition before leave may be granted to bring the judicial review challenge.
The case raised important issues about the construction of provisions of section 50 related to the criteria necessary to establish a "substantial interest". The High Court, while refusing leave to Mr Harding to bring the challenge, had asked the Supreme Court to consider the criteria necessary for "substantial interest" to be shown.
Mr Harding had claimed to have a "substantial interest" in the proposed resort because of its effect on the local environment and the headland, where he had family connections and visited regularly, and in vindication of his right to participate in the planning process.
In his judgment, Mr Justice Murray said the test laid down by the Oireachtas in section 50 of the Act as to what constituted "substantial interest" was "vague and lacking in precision" and that it was being left to the courts to interpret.
Not for the first time, legislation seeking to limit litigation was drawn up in "imprecise" terms likely to generate more and not less litigation for already heavily- burdened courts, he said.
Mr Justice Nicholas Kearns, in a judgment with which Mr Justice Murray and Mr Justice Joseph Finnegan agreed, ruled that Mr Harding must show he had an interest in the development which was "peculiar and personal" to him and that his interest was "significant and weighty".
Mr Justice Kearns found Mr Harding had not established a substantial interest by reason of his claimed interest in the impact of the proposed development from an environmental perspective.
He agreed with the High Court that Mr Harding had established a sufficient connection with the area and that his concerns about the development of the headland were genuine, but the test of substantial interest required more than a familial connection coupled with a pattern of visiting it as a former native and as a seafaring person.
Mr Justice Kearns earlier noted that section 50, by requiring "substantial interest" rather than the previous standard of "sufficient interest", had significantly heightened the bar for objectors or aggrieved parties who wished to take judicial review proceedings.
The 2000 Act had established "onerous conditions" and "numerous hurdles" for objectors to clear before obtaining leave, and may be seen as "expressly underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible", he said.
The Irish Times
www.buckplanning.ie
Saturday, 12 January 2008
Ryanair challenge to T2 prevented
The High Court has prevented Ryanair from bringing a further legal challenge to the granting of planning permission for a second terminal at Dublin airport.
Mr Justice Frank Clarke ruled yesterday that the terms of settlement of a previous court action precluded Ryanair from bringing a fresh challenge to the permission for the T2 terminal.
He was referring to a settlement between Ryanair and the Dublin Airport Authority (DAA) in 2006 of a challenge by the airline to the second terminal. An Bord Pleanála granted planning permission for T2 last August.
Ryanair launched a High Court challenge to the validity of that decision in September.
Last month, the DAA applied to the High Court to have that challenge dismissed. Mr Justice Clarke granted that application yesterday.
Ryanair had launched the first legal challenge shortly after the Government decided in May 2005 to grant permission for the second terminal. That action was settled almost a year later following correspondence between Ryanair chief executive Michael O'Leary and DAA chief executive Declan Collier.
The Government decision was based on passenger projections of 30 million by 2020 and it was envisaged that the second terminal should be built by 2009.
In its first challenge, Ryanair claimed the decision to allow the DAA to build T2 was an abuse of its dominant position and it breached EU treaties and competition law. Ryanair also argued it was done in order to allow "inefficient" trade union-controlled work practices to continue at the new terminal. The case was settled in March 2006 and struck out by the court on agreed terms.
Yesterday, the judge said the agreement arose after it appeared "peace had broken out" between Ryanair and the DAA following a long history of disputes between the two parties.
Dismissing Ryanair's proceedings, Mr Justice Clarke found that the recently approved planning permission was in keeping with a report commissioned by the DAA in September 2005 and upon which the agreement which led to the legal settlement was based.
On the basis of the agreement reached between Ryanair and the DAA in March 2006, the airline was precluded from taking any further legal action, he ruled.
The Irish Times
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Mr Justice Frank Clarke ruled yesterday that the terms of settlement of a previous court action precluded Ryanair from bringing a fresh challenge to the permission for the T2 terminal.
He was referring to a settlement between Ryanair and the Dublin Airport Authority (DAA) in 2006 of a challenge by the airline to the second terminal. An Bord Pleanála granted planning permission for T2 last August.
Ryanair launched a High Court challenge to the validity of that decision in September.
Last month, the DAA applied to the High Court to have that challenge dismissed. Mr Justice Clarke granted that application yesterday.
Ryanair had launched the first legal challenge shortly after the Government decided in May 2005 to grant permission for the second terminal. That action was settled almost a year later following correspondence between Ryanair chief executive Michael O'Leary and DAA chief executive Declan Collier.
The Government decision was based on passenger projections of 30 million by 2020 and it was envisaged that the second terminal should be built by 2009.
In its first challenge, Ryanair claimed the decision to allow the DAA to build T2 was an abuse of its dominant position and it breached EU treaties and competition law. Ryanair also argued it was done in order to allow "inefficient" trade union-controlled work practices to continue at the new terminal. The case was settled in March 2006 and struck out by the court on agreed terms.
Yesterday, the judge said the agreement arose after it appeared "peace had broken out" between Ryanair and the DAA following a long history of disputes between the two parties.
Dismissing Ryanair's proceedings, Mr Justice Clarke found that the recently approved planning permission was in keeping with a report commissioned by the DAA in September 2005 and upon which the agreement which led to the legal settlement was based.
On the basis of the agreement reached between Ryanair and the DAA in March 2006, the airline was precluded from taking any further legal action, he ruled.
The Irish Times
www.buckplanning.ie
Tuesday, 4 December 2007
Supreme Court hears appeal aimed at halting Kinsale plan
A retired merchant seaman began a Supreme Court appeal yesterday against the High Court's refusal to permit him to bring a challenge aimed at overturning planning permission for a €400 million tourism resort centre near Kinsale, Co Cork.
Thomas Harding of Ardback Heights, Kinsale is appealing the High Court's decision that he had not established a sufficient "substantial interest" to give him the necessary legal standing to bring a judicial review challenge.
Mr Harding wants to overturn the granting in October 2005 of planning permission by Cork County Council to Kinsale Development Ltd, Ballyvolane Business Park, Cork, formerly XCes Projects Ltd, for the building of the centre at Preghane, Ballymacus, Kinsale, in October 2005.
The proposed resort includes a hotel, conference building, a resource centre, spa, offices, restaurant, bar, car parking facilities, an 18-hole golf course, an equestrian centre and 191 lodges/apartments.
Mr Harding claims the development should not be permitted because of its proposed location in a scenic landscape and a proposed natural heritage area overlooking Kinsale harbour and Castlepark peninsula.
Cork County Council claims Mr Harding did not have the required legal standing to bring the judicial review challenge as he was not the owner of any property in the area, and had lived for only certain periods at Ardback Heights, which was about 2km-3km from the site of the proposed development.
Mr Harding has rejected that argument and said he had lived all his life in the area of Kinsale harbour and grew up as a child in the Ballymacus area where it was proposed to build the development.
The appeal hearing before the Chief Justice, Mr Justice John Murray, Mr Justice Nicholas Kearns and Mr Justice Joseph Finnegan, continues today.
The Irish Times
www.buckplanning.ie
Thomas Harding of Ardback Heights, Kinsale is appealing the High Court's decision that he had not established a sufficient "substantial interest" to give him the necessary legal standing to bring a judicial review challenge.
Mr Harding wants to overturn the granting in October 2005 of planning permission by Cork County Council to Kinsale Development Ltd, Ballyvolane Business Park, Cork, formerly XCes Projects Ltd, for the building of the centre at Preghane, Ballymacus, Kinsale, in October 2005.
The proposed resort includes a hotel, conference building, a resource centre, spa, offices, restaurant, bar, car parking facilities, an 18-hole golf course, an equestrian centre and 191 lodges/apartments.
Mr Harding claims the development should not be permitted because of its proposed location in a scenic landscape and a proposed natural heritage area overlooking Kinsale harbour and Castlepark peninsula.
Cork County Council claims Mr Harding did not have the required legal standing to bring the judicial review challenge as he was not the owner of any property in the area, and had lived for only certain periods at Ardback Heights, which was about 2km-3km from the site of the proposed development.
Mr Harding has rejected that argument and said he had lived all his life in the area of Kinsale harbour and grew up as a child in the Ballymacus area where it was proposed to build the development.
The appeal hearing before the Chief Justice, Mr Justice John Murray, Mr Justice Nicholas Kearns and Mr Justice Joseph Finnegan, continues today.
The Irish Times
www.buckplanning.ie
Saturday, 24 March 2007
Land access case coming to head
A High Court Case is to be taken by campaigners against the owners of the Old Head Golf Links in Kinsale over the issue of public access to the historic headland.
Diarmuid O Dalaigh, a member of the Free the Old Head Campaign, has been granted leave by the Attorney general to launch legal proceedings against Ashbourne Holdings Ltd. to establish the existence of a right of way at the Old Head of Kinsale.
‘The issue has been to Court on a number of previous occasions in relation to planning matters or under narrow legal boundaries but this time the right of way issue will itself be tested’, said John Jeffries, a spokesman for the Free the Old Head of Kinsale Campaign, who is confident the case could be won.
We have been building up to this for quite a while. We are very optimistic of a positive outcome. We feel we have a very solid case’, he added.
Mr. Jeffires said the issue was being widely watched throughout Ireland by walking groups and others who had found in recent years that traditional walkways had been blocked off by property owners.
Previous court cases in relation to the Old Head of Kinsale had been based on very narrow parameters, he said. The Free the Old Head campaign, through Diarmuid O Dalaigh, was now bringing this to Court specifically of the right of way matter.
‘We strongly believe that we can win this case and we are presenting a very robust argument before the High Court.’
Basil Hegarty, solicitor for Ashborne Holdings, said the company would defend the action ‘100%’.
‘The company has previously defended its position before Cork County Council, An Taisce, Bord Pleanala, the High Court and the Supreme Court that there are no public rights on the Old Head and we are amazed that this new court action has been taken.’
Ailin Quinlan
© Irish Examiner
Diarmuid O Dalaigh, a member of the Free the Old Head Campaign, has been granted leave by the Attorney general to launch legal proceedings against Ashbourne Holdings Ltd. to establish the existence of a right of way at the Old Head of Kinsale.
‘The issue has been to Court on a number of previous occasions in relation to planning matters or under narrow legal boundaries but this time the right of way issue will itself be tested’, said John Jeffries, a spokesman for the Free the Old Head of Kinsale Campaign, who is confident the case could be won.
We have been building up to this for quite a while. We are very optimistic of a positive outcome. We feel we have a very solid case’, he added.
Mr. Jeffires said the issue was being widely watched throughout Ireland by walking groups and others who had found in recent years that traditional walkways had been blocked off by property owners.
Previous court cases in relation to the Old Head of Kinsale had been based on very narrow parameters, he said. The Free the Old Head campaign, through Diarmuid O Dalaigh, was now bringing this to Court specifically of the right of way matter.
‘We strongly believe that we can win this case and we are presenting a very robust argument before the High Court.’
Basil Hegarty, solicitor for Ashborne Holdings, said the company would defend the action ‘100%’.
‘The company has previously defended its position before Cork County Council, An Taisce, Bord Pleanala, the High Court and the Supreme Court that there are no public rights on the Old Head and we are amazed that this new court action has been taken.’
Ailin Quinlan
© Irish Examiner
Monday, 26 February 2007
Board to quash permission for landfill
An Bord Pleanála has agreed before the High Court that its decision granting planning permission for a landfill site in Co Kildare must be overturned.
A local residents group which challenged the permission had claimed the manner in which the board had dealt with the planning application had been "peculiar throughout". The board yesterday conceded that its permission, granted on the basis of certain conditions, should be quashed because the board had reached that decision on the basis of inadequate records.
The court heard there was no record of any meeting of the board as to how the planning conditions as finally prepared were approved. The issue of how the matter should now proceed will be decided later.
The Usk and District Residents Group said the conceded shortcomings in the board's decision failed to address other matters relating to how the board had reached its decision, including the group's concerns relating to further information being sought from the landfill developer by the board after an inspector had recommended that permission be refused for the development.
The board had not followed the inspector's recommendation to refuse permission but instead directed that a further information request prepared by the inspector be issued in its entirety, the group said.
Mr Justice Peter Kelly yesterday heard submissions from the sides as to how the matter should now be addressed in light of the board's concession that its permission should be quashed. The judge said he would reserve his decision on how the planning application should be dealt with in the future.
The challenge to the board's decision of July 24th, 2006, had been brought by the residents group and related to a proposed landfill at Usk, Kilcullen, being developed by Greenstar Recycling Holdings Ltd for 200,000 tonnes per year of non-hazardous waste for 10 years.
An inspector who conducted a four-day oral hearing into the proposed landfill, submitted a report to the board in July 2005 recommending that permission be refused on four grounds. The board later sought further information from
the developer and that was assessed by the inspector who, in a second report, reduced the number of grounds for her refusal to three.
The board decided in July 2006 to grant permission on certain conditions. It said that, in deciding not to accept the inspector's recommendation to refuse permission, it had regard to national policy; a waste licence granted by the Environmental Protection Agency on June 8th, 2004; the previous use of the site as a sand and gravel quarry and the location close to the national road system.
The residents group suggested the second of the inspector's reports was delivered after the board meeting of June 20th and, therefore, it did not have the required information when it made its decision. The board later said the conditions were prepared after the June 20th meeting which, it said, was not unusual because no conditions had initially been prepared by the inspector because she had recommended refusal of permission. It said the conditions were fully discussed at the June 20th meeting.
However, because there was no record of any meeting of the board at which the planning conditions as finally prepared were approved, the board conceded its decision granting permission should be overturned.
John Collins, solicitor for the residents group, said his clients have no faith in the objectivity or impartiality of the board relating to the landfill development appeal. The manner in which the appeal had been dealt with "has been peculiar throughout", he said.
© 2007 The Irish Times
A local residents group which challenged the permission had claimed the manner in which the board had dealt with the planning application had been "peculiar throughout". The board yesterday conceded that its permission, granted on the basis of certain conditions, should be quashed because the board had reached that decision on the basis of inadequate records.
The court heard there was no record of any meeting of the board as to how the planning conditions as finally prepared were approved. The issue of how the matter should now proceed will be decided later.
The Usk and District Residents Group said the conceded shortcomings in the board's decision failed to address other matters relating to how the board had reached its decision, including the group's concerns relating to further information being sought from the landfill developer by the board after an inspector had recommended that permission be refused for the development.
The board had not followed the inspector's recommendation to refuse permission but instead directed that a further information request prepared by the inspector be issued in its entirety, the group said.
Mr Justice Peter Kelly yesterday heard submissions from the sides as to how the matter should now be addressed in light of the board's concession that its permission should be quashed. The judge said he would reserve his decision on how the planning application should be dealt with in the future.
The challenge to the board's decision of July 24th, 2006, had been brought by the residents group and related to a proposed landfill at Usk, Kilcullen, being developed by Greenstar Recycling Holdings Ltd for 200,000 tonnes per year of non-hazardous waste for 10 years.
An inspector who conducted a four-day oral hearing into the proposed landfill, submitted a report to the board in July 2005 recommending that permission be refused on four grounds. The board later sought further information from
the developer and that was assessed by the inspector who, in a second report, reduced the number of grounds for her refusal to three.
The board decided in July 2006 to grant permission on certain conditions. It said that, in deciding not to accept the inspector's recommendation to refuse permission, it had regard to national policy; a waste licence granted by the Environmental Protection Agency on June 8th, 2004; the previous use of the site as a sand and gravel quarry and the location close to the national road system.
The residents group suggested the second of the inspector's reports was delivered after the board meeting of June 20th and, therefore, it did not have the required information when it made its decision. The board later said the conditions were prepared after the June 20th meeting which, it said, was not unusual because no conditions had initially been prepared by the inspector because she had recommended refusal of permission. It said the conditions were fully discussed at the June 20th meeting.
However, because there was no record of any meeting of the board at which the planning conditions as finally prepared were approved, the board conceded its decision granting permission should be overturned.
John Collins, solicitor for the residents group, said his clients have no faith in the objectivity or impartiality of the board relating to the landfill development appeal. The manner in which the appeal had been dealt with "has been peculiar throughout", he said.
© 2007 The Irish Times
Monday, 15 January 2007
NOTICE OF PROPOSED AMENDMENT TO NEWBRIDGE LOCAL AREA
By Order of the High Court made on the 21st February 2006, in proceedings entitled Newbridge Community Development Limited –v- Kildare County Council, Judicial Review Record No. 254JR/2004, the High Court quashed the following part of clause 2.6.2. of the Newbridge Local Area Plan 2003 as adopted by Kildare County Council on the 29th September 2003 :-
“The amenity strip along the west side of the River Liffey at Kilbelin shall be reduced to 50m and public access to same shall be provided at the southern end of the zoning.”
The High Court also ordered Kildare County Council to propose and advertise, in accordance with the provisions of Section 20 of the Planning and Development Act 2000 –2004, an amendment to Clauses 2.6.2 and 4.1.4. of the Newbridge Local Area Plan 2003 with the consequential amendments to the map forming part of the Plan.
Notice is hereby given pursuant to Section 20 of the Planning and Development Act, 2000 – 2004 that Kildare County Council proposes to make an amendment to the Newbridge Local Area Plan 2003 as follows:
The existing terms of Clause 2.6.2 of the Plan consequent upon the said High Court Order provide as follows:
Clause 2.6.2 “No development will be permitted on either bank within 80m of the River Liffey. Development along the river should front onto the river so as to ensure the passive supervision of the proposed linear park.”
It is proposed to amend the terms of Clause 2.6.2 by the addition of the following text at the end thereof:
“The amenity strip and the area where development will not be permitted along the west side of the River Liffey at Kilbelin shall be reduced to 50m of the River Liffey and public access to same shall be provided at the southern end of the zoning. The area between the 50m strip and the adjacent lands zoned New Residential to be zoned New Residential. “
The existing terms of the Clause 4.1.4 of the Plan provide as follows:
Clause 4.1.4. No development will be permitted within 80m of the banks of the River Liffey in order to facilitate the creation of a riverside linear park.
It is proposed to amend the terms of Clause 4.1.4 by the addition of the following text at the end thereof:
Along the west side of the River Liffey at Kilbelin, the area where no development will be permitted shall be reduced to 50m of the River Liffey.
The proposed amendments together with the map relating to the proposed amendments may be inspected for a period of 6 weeks between 14/12/06 and 25/01/07
“The amenity strip along the west side of the River Liffey at Kilbelin shall be reduced to 50m and public access to same shall be provided at the southern end of the zoning.”
The High Court also ordered Kildare County Council to propose and advertise, in accordance with the provisions of Section 20 of the Planning and Development Act 2000 –2004, an amendment to Clauses 2.6.2 and 4.1.4. of the Newbridge Local Area Plan 2003 with the consequential amendments to the map forming part of the Plan.
Notice is hereby given pursuant to Section 20 of the Planning and Development Act, 2000 – 2004 that Kildare County Council proposes to make an amendment to the Newbridge Local Area Plan 2003 as follows:
The existing terms of Clause 2.6.2 of the Plan consequent upon the said High Court Order provide as follows:
Clause 2.6.2 “No development will be permitted on either bank within 80m of the River Liffey. Development along the river should front onto the river so as to ensure the passive supervision of the proposed linear park.”
It is proposed to amend the terms of Clause 2.6.2 by the addition of the following text at the end thereof:
“The amenity strip and the area where development will not be permitted along the west side of the River Liffey at Kilbelin shall be reduced to 50m of the River Liffey and public access to same shall be provided at the southern end of the zoning. The area between the 50m strip and the adjacent lands zoned New Residential to be zoned New Residential. “
The existing terms of the Clause 4.1.4 of the Plan provide as follows:
Clause 4.1.4. No development will be permitted within 80m of the banks of the River Liffey in order to facilitate the creation of a riverside linear park.
It is proposed to amend the terms of Clause 4.1.4 by the addition of the following text at the end thereof:
Along the west side of the River Liffey at Kilbelin, the area where no development will be permitted shall be reduced to 50m of the River Liffey.
The proposed amendments together with the map relating to the proposed amendments may be inspected for a period of 6 weeks between 14/12/06 and 25/01/07
Sunday, 12 November 2006
Irish planning appeals - An Bord Pleanala
Irish planning appeals – An Bord Pleanala
In this material we consider the role of appeals in the planning process. The purpose of this lecture is to introduce the main aspects of appeals and then to illustrate planning practice via a visiting lecturer from An Bord Pleanala. Next year you will build on what we learn here.
1. Planning powers
2. Main Characteristics of the Planning Appeal System
3. The composition of the Board
4. Determining appeals
The basics
Any person may appeal against a grant or refusal of planning permission. The appellate authority, An Bord Pleanala is a statutory corporation, established by section 3 of the 1976 Planning Act to determine appeals, references and certain proposals by local authorities to acquire land compulsorily, road schemes and other matters.
Its planning powers are provided under section 26 of the 1963 Planning Act and section 37 of the 2000 Planning Act. The Board is also responsible for dealing with appeals under the Building Control Act, 1990; the Local Government (Water Pollution) Acts, 1977 and 1990; and the Air Pollution Act, 1987.
Main Characteristics of the Planning Appeal System
There are three main characteristics of the system, which are questioned from time to time:
· The system is independent,
· The system is designed to be fair and impartial, and
· The system is open.
Let’s see why I might claim these things:
The main criticism of the Board you hear colloquially, and this is true of
The composition of the Board
I want to dwell for a second on how the Board is composed; this is again to highlight its impartiality; an impartiality or independence which is, unsurprisingly, questioned by those who lose appeals.
Section 104 of the 2000 Act provides for the Board to consist of a chairperson and, 7 ordinary members, all of who are full time, salaried office holders. However, the Minister may at any time increase this – at present there is a chairperson and 11 members in a Board of on average, in 2002, 124 staff.
The Chairperson is appointed by the Government from a list of candidates selected by an independent committee in accordance with section 105 of the 2000 Act, chaired by the President of the High Court. The Government is generally required to make the appointment from among not more than three persons selected by that committee and found by them to be suitable for appointment. The Chairperson of the Board normally holds office for seven years and may be re-appointed for a second or subsequent term of office provided he or she is Chairperson at the time of the re-appointment.
Six of the members are appointed by the Minister for the Environment and Local Government from among persons selected by six groups of organisations prescribed by Regulations and representative of professional, environmental, development, local government, rural and local development and general interests. The other member is appointed by the Minister from among the officers of the Minister who are established civil servants. These members normally hold office for a term of five years and may be re-appointed for a second or subsequent term provided that the person concerned is an outgoing member at the time of the re-appointment.
All Board members are precluded by statute from holding any other office or employment and they must declare all interests relating to the development of land.
It has its own website: http://www.pleanala.ie and is located on
Determining appeals
When an appeal is made to the Board, it is normally required to determine the application as if it had been made to it in the first place.
In determining individual appeals, the Board acts in a quasi-judicial role in accordance with the principles of natural justice. Unlike most planning appeal systems in
There is no political interference in decisions by the Board in individual cases. Under section 144 of the 2000 Planning Act, it is unlawful to communicate with any member of the Board, an employee or a consultant engaged by the Board for the purpose of influencing improperly his/her consideration of an appeal or a Board decision. There are also legal obligations on members of the Board, employees and consultants to declare certain interests. The Board's procedures are such that no single person, be it Board member, inspector or other person can ensure what the Board's decision will be in a particular appeal. The quorum for the Board meeting is three members and all members normally attend a Board meeting where a particularly complex or sensitive case is involved. In considering an appeal all submissions on the file are considered together with the inspector's report (including recommendation). The Board gives due consideration to the report, but the decision may be at variance with the recommendation; in 2001, the Board accepted the general thrust of the inspector's recommendation in 91% of cases. Under the 2000 Planning Act, in any case where the Board’s decision is different in relation to the granting or refusing of permission, the Board must state in its decision order the main reason for not accepting the recommendation of the Inspector.
The Board is empowered to contravene the provisions of a development plan, but it seldom sees the need to exercise this power. However, in any case where a planning authority decides to refuse permission on the grounds that the proposed development would materially contravene the provisions of the development plan, the Board may only grant permission on appeal in certain circumstances e.g. where the proposed development is of strategic or national importance. The Board will, in appropriate cases, take account of public policy on major issues since the Board is required by section 143 of the 2000 Act to have regard to relevant policies and objectives of Ministers, planning authorities and certain other public authorities. Where policy on economic development and job creation is a material consideration in an appeal, it is the Board's practice to refer to these factors in its decision, but such factors are a material consideration in exceptional cases only. The Board tries to strike the appropriate balance between environmental and economic considerations in determining appeals.
The Board, where it determines the appeal as if it were made to it in the first instance, conveys its decisions on individual appeals by way of sealed orders, which must include reasons and considerations for the decisions.
Given the provision for a judicial review of a decision in an individual appeal, the Board does not engage in public discussions on the pros and cons of its decisions (you’ll not here a Bord planner talk of the M3).
Three days after a decision is made, the entire Board file may be inspected by any member of the public for at least five years. A copy of the Board Order and Direction and the Inspector’s report is also available on its website. Copies of any documents on the file may be purchased at the Board's offices.
Let’s look at how you would make an appeal!
1. Firstly: who may appeal?
- An applicant for planning permission (first party), and
- Any other person, body or interested group etc. who made submissions or observations in writing to the planning authority in relation to the planning application.
There are two exceptions to the requirement to have made prior submissions or observations: -
(1) a prescribed body who should have been notified by the planning authority, but wasn’t; and
(2) a person who owns adjoining land.
Appeals must be received by the Board within four weeks beginning on the date of the making of the decision by the planning authority (N.B. not the date on which the decision is sent or received). For example, if the decision of a planning authority is made on Wednesday2nd of a month, the last day for receipt of the appeal is Tuesday 29th of the same month.
These are strict statutory time limits. The Board has no discretion to accept late appeals, whether they are sent by post or otherwise. It is your responsibility to ensure that the appeal or other material is delivered or posted in time for delivery within the appropriate period. An appeal or other material posted within the permitted period but received outside it will be invalid.
Every appeal must be made in writing and must be sent by post to An Bord or delivered by hand to an employee of the Board at the Board’s offices during office hours.
The appeal must be fully complete from the start – you are not permitted to submit any part of it at a different time, even within the time limit.
The appeal must include:
· Yours or your agent’s own name and address.
· The subject matter of the appeal - you must give sufficient details to enable the Board to identify the planning application which is the subject of the appeal (e.g. a copy of the planning authority decision, or details of nature and the site of the proposed development, or the name of the planning authority and the planning register reference number shown of the decision you are appealing).
· The grounds of appeal and supporting material and arguments. The Board cannot take into consideration any grounds of appeal or information submitted after the appeal (except information specifically requested by the Board) and it cannot consider non-planning issues; grounds of appeal should not, therefore, include such issues. The correct fee must be paid.
· Finally, in the case of a third party appeal, the acknowledgement by the planning authority of receipt of the submission or observation made by the person to the planning authority is required at application stage to show that the submission or observation was made at that stage.
If the appeal does not meet all the legal requirements, it will be invalid and cannot be considered by the Board.
There are three types of decision which cannot be appealed.
· There is no appeal to the Board where a planning authority is granted authorisation by the Courts to refuse permission on the basis of past failures of a developer or a related person to comply with a previous permission.
· There is no appeal to the Board against a decision to grant permission based on aspects of the decision which was decided in the outline permission.
· Generally, there will be no appeal to the Board in relation to financial contributions from
Where an appeal has already been made, another person can become an “observer” and make submissions or observations on the appeal in writing (there is a fee and a list of criteria which must be included – non-planning issues are ignored). The time limit for such submissions or observations is four weeks from the receipt of the appeal by the Board. (Note: if an EIA is submitted, this is advertised in newspapers and observers have four weeks to make submissions; or where additional notices are required four weeks stands).
Should the appeal (or all the appeals where there is more than one) be withdrawn by the person who made it, the decision of the planning authority will stand and any submissions/observations will lapse.
Invalid appeals or observations/submissions may be re-lodged, with another fee, if they are on time, correctly made and include all relevant documentation. Where the time limit has not expired for re-lodging a fresh appeal or observation, the Board does not guarantee that it will notify appellants or “observers” in sufficient time that would allow a fresh appeal or observation to be made within the statutory time limit.
Any party to the appeal (not an “observer”) may request an oral hearing provided the correct non-refundable fee is paid in addition to the appeal fee. The appellant must make the request within the period for lodging the appeal but, where a party to an appeal other than an appellant is sent a copy of an appeal, he/she may make the request within four weeks from the date the copy is sent to him/her. If you request an oral hearing, you still must state your grounds of appeal in full and comply with the other legal requirements when lodging your appeal.
The Board has absolute discretion to hold an oral hearing with or without a request from a party and will generally only hold one where this will aid its understanding of a particularly complex case or where it considers that significant national or local issues are involved. The Board may also direct the holding of an oral hearing to determine whether an appeal is made with the sole intention of delaying development or of securing the payment of money, gifts, considerations or other inducement by any person. Oral hearings were held in 26 planning appeal cases in that year to assist the Board in particularly complex cases or where significant national or local issues were involved.
The next step!
The Board sends a copy of the appeal to the planning authority and, in the case of a third party appeal, to the developer. These have four weeks to submit their views. The Board cannot consider any views that are late and no party is allowed elaborate on his/her views in writing once they have been submitted to the Board.
How does the Board ensure fair play for all?
Where the Board considers it appropriate in the interests of justice, it can ask any party, observer or any other person or body to make submissions or observations on any matter that has arisen in the appeal. This will allow the Board, for instance, to seek comment on any significant new matter arising in the appeal. The Board also has powers to require any party or observer to submit any document, information etc. which it considers necessary. The Board will specify a time limit (minimum 2 weeks) for submission of the invited material and this limit will be strictly enforced.
Can the Board consider matters which have not been raised in the appeal?
Yes. Generally, the Board is required to consider the application, the subject of the appeal, afresh. Accordingly, all the relevant planning issues relating to the application are considered by the Board in its determination of the case whether or not they were raised by the planning authority, the parties or observers. If a new issue arises the parties and observers will be given an opportunity to comment on these.
Where an appeal relates to conditions only which are attached to a decision of a planning authority to grant permission and there is no other appeal, the Board may use its discretionary powers not to consider the application afresh but, instead, to issue directions to the planning authority to amend, remove or attach new conditions to the decision. Where it decides not to use its discretionary powers, the Board may either grant or refuse permission for the development even where conditions only are appealed.
Can the Board contravene the provisions of the local Development Plan?
The Board, while obliged to have regard to the provisions of a local development plan, may contravene its provisions in certain circumstances. In circumstances where the planning authority decides to refuse permission on the grounds that the proposed development materially contravenes the Development Plan, the Board may grant permission on appeal but only if it considers that –
· the proposed development is of strategic or national importance, or
· there are conflicting objectives in the Development Plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
· permission should be granted having regard to regional planning guidelines for the area, Ministerial guidelines, Ministerial policy directives, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
· permission should be granted having regard to the pattern of development and permissions granted in the area since the making of the Development Plan.
The Board can, of course, refuse permission for other reasons even where the proposed development would be in accordance with the provisions of the local Development Plan.
What is the time limit for deciding appeals?
The Board's objective is to dispose of appeals within 18 weeks. However, where the Board does not consider it possible or appropriate to reach a decision within 18 weeks (e.g. because of delays arising from the holding of an oral hearing), it will inform the parties of the reasons for this and must say when it intends to make the decision.
Will I be informed of the Board’s decision?
Yes. Generally, a decision will be made either-
· to grant permission/outline permission,
· to grant permission/outline permission with conditions, or
· to refuse permission/outline permission
and all parties and observers involved in the appeal will be notified. A copy of the Inspector’s Report, the Board’s Direction (e.g. whether to grant or refuse, what conditions, if any, should be attached to a permission, other instructions etc), and the Board’s decision order is posted on the Board’s website at www.pleanala.ie. The reasons and considerations for the Board’s decision will be included in the decision order and, in any case where the Board does not accept the Inspector’s recommendation in relation to granting or refusing permission, the main reasons for not accepting it.
Is the Board’s decision final?
Yes. Its validity may only be challenged by way of judicial review in the High Court within 8 weeks. The Court will not re-open the planning merits of the case and may only give leave to pursue the review process where it is satisfied that there are substantial grounds for contending that the Board's decision is invalid or ought to be quashed and that the person seeking the judicial review has a substantial interest in the matter.
It is not an appeal against a decision but a review of the manner in which the decision was made. A Supreme Court decision: O’Keefe vs An Bord Pleanala in 1993 stated: Under the provision of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions between the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board. The Court is not vested with that jurisdiction, not is it expe4cted to, nor can it, exercise discretion with regard to planning matters. Those who begin judicial review proceedings must go through a two stage process: (1) apply for judicial review within two months and they must prove substantial grounds, so many are refused, (2) if successful they have a substantive hearing at which the application or judicial review is fully argued and the court may quash the Board’s decision by an order of certiorari. If unsuccessful it is possible to appeal to the Supreme Court, but this will only be on a matter of exceptional public importance. It is much more difficult to have a decision on a planning application quashed than it is to challenge successfully any other decision of a local authority. This of course was the intention.
Can the Board dismiss appeals?
Yes. The Board has discretion to dismiss an appeal where it is satisfied the appeal is vexatious, frivolous or without substance or foundation or where the appeal is made with the sole intention of delaying development or of securing the payment of money, gifts, considerations or other inducement by any persons. The Board can also declare a planning application or an appeal withdrawn where it is satisfied it has been abandoned.
Can I withdraw my appeal?
Yes. An appeal can be withdrawn by an appellant and the planning application can be withdrawn by the applicant at any time prior to the determination of the case by the Board. Where an appeal is withdrawn (or all the appeals where there is more than one), the original decision of the planning authority takes effect. Where the planning application is withdrawn by the applicant, no permission can be granted by the planning authority in relation to the application.
How strict are the time limits?
So that the Board can determine appeals generally within 18 weeks, all the time limits are very strict and the Board has no discretion to extend the dates. This applies to the lodging of appeals, submission of comments by parties, the making of submissions and observations to the Board by others and, where invited by the Board, to additional submissions.
What if the offices of the Board are closed on the last day allowed?
When the last date for receipt of an appeal or other material falls on a weekend, public holiday or other day when the offices of the Board are closed, the latest date for receipt will be the next day on which the offices of the Board are open. The period from 24th December to 1st January inclusive (i.e. 9 days) is excluded for the purposes of calculation of all periods of time in relation to planning appeals.
Can the Board’s documents be inspected and purchased?
Three days after a decision is made, the entire Board file may be inspected by any member of the public for at least five years. A copy of the Board Order and Direction and the Inspector’s report is also available on its website. Copies of any documents on the file may be purchased at the Board's offices.
Files on appeals can be inspected by members of the public after the appeals are determined by the Board. These files can be inspected free of charge at the Board's offices on weekdays between
Can I apply to the Board for leave to appeal a decision of a planning authority?
A person with an interest in adjoining land (e.g. a landowner/occupier) who did not make submissions or observations to the planning authority in relation to the planning application may apply to the Board for leave to appeal within four weeks of a decision of a planning authority to grant permission. The Board may grant leave to appeal where the person shows that the decision of the planning authority to grant permission differs materially from the application because of the conditions imposed and the conditions imposed will materially affect his/her enjoyment of the land or reduce the value of the land.
Like a planning appeal, the person seeking leave to appeal must state his/her name and address, the grounds on which he/she is basing the leave to appeal, a description of his/her interest in the land and the correct fee.
Where a person is granted leave to appeal, the planning appeal must be received by the Board within two weeks of him/her receiving notification of leave to appeal and must otherwise comply with the requirements for lodging the planning appeal including a further fee. Details of fees are available from the Board or your local planning authority.
Can I refer the planning authority’s refusal to deal with a second planning application to the Board?
Where a decision of a planning authority in relation to a planning application is on appeal to the Board, a second application for the same development or development of the same description may not be made to the planning authority. Where a dispute arises as to whether an application is for the same development or development of the same description, the matter may be referred to the Board for a determination.
Main tasks
The determination of normal planning appeals is the principal task of the Board, accounting for 95% of the intake of cases in 2002.
In 2002, 39% of appeals formally decided were made by applicants who had been refused permission by the planning authority.
Applicants may also appeal against conditions proposed to be attached to permissions by planning authorities. These accounted for 10% of formally decided appeals.
Third parties usually appeal against decisions to grant planning permissions and occasionally against reasons given for refusal. These accounted for 51% of formally decided appeals. Any other person may make submission or observations in relation to an appeal that is before the Board, these are generally known as observers.
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