Monday 16 March 2009

Judge says integrity of planning process a 'vital national interest'

A HIGH Court judge has said the courts should never lose sight of the fact that the integrity of the planning process is a “vital national interest”.

Bad planning decisions “sentence generations to live with the consequences” and, in interpreting the planning legislation, the courts should never lose sight of the overarching national interest in the integrity of the planning process, Mr Justice John Hedigan said.

He made the remarks in a judgment yesterday rejecting an application by two builders aimed at requiring Clare County Council to grant them default permission for a proposed development of two houses on a site at Dough, Liscannor Road, Lahinch.

Martin and Michael Ryan, developers based in Limerick city, had applied to the council in May 2007 for planning permission to demolish an existing house on the Dough site and construct two two-storey houses, plus car parking spaces.

In late June 2007, the brothers were advised in error that permission had been refused but the error was corrected within days and the judge said the brothers were aware by July 3rd, 2007, at the latest, that no formal decision had been made. A draft order refusing permission had in fact been made but, due to an oversight, was not signed by the relevant person within the required time period.

The brothers then sought default permission but the council in September 2007 refused to allow them avail of the default permission mechanism.

The council argued the proposed development contravened the Clare county development plan 2005 or was contrary to its general objectives, including conserving and enhancing the quality and character of the area and protecting residential amenity.

The council said the immediate surrounding area of the development was dominated by single-storey and dormer-style bungalows considerably more discreet than the houses proposed by the Ryans.

Rejecting those arguments, the judge said the proposed two-storey housing development would be similar to many in the surrounding area and not entirely out of character and he could not accept it contravened the development plan.

The council had placed considerable emphasis on the volume of objections to the proposed development but that was only relevant when considering the materiality of any contravention as opposed to deciding if one exists, he said.

However, the judge accepted the council’s argument on the need to have regard to the local area plan. He noted the proposed development would have a density of 32 units per hectare when the plan had adopted densities of 25 units. The development would also overlook a neighbouring property and there were other issues about vehicular access and adequate space between buildings.

He ruled the court did not have the power to make an order effectively requiring the council to grant default permission when regard to the local area plan was an essential prerequisite to any decision by the council. The court could not act as a planning body and, unless it could be shown a default permission would be fully in accordance with the plan, such permission could not be granted.

The court was also obliged to interpret the 2000 Planning and Development Act in accordance with rights, under the European Convention on Human Rights, of those who had objected to the development, he said. The court would fail in its obligations under the convention were it to grant the order without first considering if the rights of objectors had been infringed.

Irish Times

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