Monday, 22 February 2010

No breach of fair procedure over refusal of hospital car park plan

Wexele -v- An Bord Pleanála , High Court : judgment was given by Mr Justice Charleton on February 5th, 2010


There was no breach of fair procedures by An Bord Pleanála when it refused planning permission for a development in Dún Laoghaire which would have entailed building apartments and retail units on the car park used by St Michaels hospital.


Mr Justice Charleton said the case was mainly about parking, and concerned whether a planning authority can take into account the loss of parking spaces if a development proceeds. It also concerned fair procedures.

In July 2008, An Bord Pleanála refused permission to the applicant to build an apartment and retail complex consisting of 80 apartments, two retail units and associated car parking for this development and an associated development a short distance away, but only accessible by way of a long detour.

The development of this site would have removed more than 100 car parking spaces at ground level used for many years by St Michael’s hospital for its staff and patients. One of the reasons given for the refusal was that it would lead to the loss of car-parking and increased traffic congestion in the area, would seriously injure the amenities of the property in the area, and be contrary to its proper planning and sustainable development.

The developers were seeking an order of certiorari that the decision in relation to car-parking was beyond the powers of An Bord Pleanála. It also complained of unfair procedures, in that after permission was refused, third party submissions were sent to An Bord Pleanála, and they (the developers) were not furnished with them.

The applicant bought the nurses’ residence attached to St Michael’s Hospital and the car park in December 2006 with a view to developing the site. The planning history of the car park was unclear, but it was used by the hospital staff and visiting patients, accommodating up to 110 cars.

In July 2007 the applicant applied to Dún Laoghaire-Rathdown planning authority for permission to develop the car park site. This would have involved constructing two retail units and 80 apartments. There would be 80 car parking spaces, below the number required per dwelling and retail unit in the Development Plan, and a further 44 available to, but only accessed with difficulty by, residents of a planned nurses’ residence.

The planning authority refused the development on the grounds of the impact of the loss of the 110 parking spaces, impeding on the long-term viability of the hospital.

The applicant appealed this decision to An Bord Pleanála, which upheld the decision of the council.

The applicant took proceedings in the High Court, arguing that once the car park was sold a new planning unit was created and its use by the adjoining hospital was irrelevant. The hospital had no legal right to the parking. In the Dún Laoghaire-Rathdown Development Plan, no provision was made for car parking for the hospital. The company also argued that issues as to parking and traffic congestion as a result of the loss of the car park were outside the scope of what the respondent could have regard to.


Turning first to the question of fair procedures, and whether the applicant should have been afforded an opportunity to reply to all third party submissions, Mr Justice Charleton said that the scheme under the Planning and Development Act 2000 was not to be replaced with a mechanical notion derived from civil law that everything before the decision-maker must also be before the parties, and that they must be given a reasonable opportunity to counter with submissions of their own.

“ party must show that they have something to say. What they have to say must not be something that has already been said. Nor can it be a reiteration in different language of an earlier submission . . .

“The interests of justice are best met by seeking the comments of an interested party where the Board receives a novel submission on appeal that, reasonably construed, might affect its decision . . . and where that observation is not in substance already part of the papers on the appeal which had been notified to the complaining party. Here, that test is not met.”

In relation to the parking issue, Mr Justice Charleton said a decision by an administrative body is likely to exceed jurisdiction where relevant considerations are not taken into account or where irrelevant considerations underline a decision.

The issue for any planning authority was the proper planning of an area so that there is sustainable and proper development, and this remained paramount. The terms of the Development Plan were not conclusive, and could be breached if it was necessary in the interests of proper planning and sustainable development.

Without this car park 110 cars would be decanted onto the streets of the surrounding area during business hours, for five, six or perhaps seven days a week. This could reasonably be regarded as intolerable.

The previous use of a site was relevant in terms of planning considerations. If this site were to be sold again, a statutory declaration would be made as to its use for a number of years, and possibly prior to October 1st, 1964, as a car park. That was what the applicant purchased. It could shut it down, but the car park site would still be part of the planning landscape.

He said it was reasonable to refuse planning permission for putting land to use for a new purpose, on the grounds that its original use ought to be preserved.

An Bord Pleanála did not breach fair procedures, and the decision made as to car-parking was based upon relevant considerations as to the proper and sustainable development of Dún Laoghaire.

Irish Times

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