Cicol Ltd -v- An Bord Pleanála HIGH COURT Judgment was given by Ms Justice Irvine on May 8th, 2008
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.
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?
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