Planning Conditions
Planning and Development Act
Availability of documents relating to planning applications.
38.—F431[(1) Where a planning authority gives its decision in respect of a planning application the following documents shall be made available by the authority within 3 working days by placing the documents on its website, and may also make available such documents both in electronic form and for inspection and purchase by members of the public during office hours:]
(a) a copy of the planning application and of any particulars, evidence, F432[environmental impact assessment report], other written study or further information received or obtained by the authority from the applicant in accordance with regulations under this Act;
(b) a copy of any submissions or observations in relation to the planning application which have been received by the authority;
(c) a copy of any report prepared by or for the authority in relation to the planning application;
(d) a copy of the decision of the authority in respect of the planning application and a copy of the notification of the decision given to the applicant; and
(e) a copy of any documents relating to a contribution or other matter referred to in section 34 (5).
F433[(1A) Details of any telephone numbers of the applicant or addresses for communication with the applicant in electronic form provided by or on behalf of the applicant shall be taken not to be part of the planning application and shall not be made available by a planning authority to members of the public.]
(2) Without prejudice to the Freedom of Information Act, 1997, and the European Communities Act, 1972 (Access to Information on the Environment) Regulations, 1998 (S.I. No. 125 of 1998), and any regulations amending those regulations, F434[…] the documents referred to under subsection (1) shall be available for inspection for a period of not less than 7 years after the making of the decision by the authority.
F435[(3)(a) Where a planning application is not accompanied by an environmental impact assessment report, any other document referred to in subsection (1)(a) or (b) which is received or obtained by a planning authority shall be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document until a decision is made on the application and may also be made available by the authority by placing the document on the authority’s website for inspection or in other electronic form.
(b) Where a planning application is accompanied by an environmental impact assessment report—
(i) a document referred to in subsection (1)(a) which is received or obtained by a planning authority shall be placed on its website for inspection and be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document and may also be made available for inspection by the authority in other electronic form,
(ii) a document referred to in subsection (1)(b) which is received or obtained by a planning authority shall be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document until a decision is made on the application and may also be made available by the authority for inspection by placing the document on the authority’s website or in other electronic form, and
(iii) a document referred to in subsection (1)(c), (d) or (e) which is received or obtained by a planning authority shall be placed on its website for inspection within 3 working days of the giving of the decision in respect of the application.]
F436[(3A) Without prejudice to the Freedom of Information Act 2014, and the European Communities (Access to Information on the Environment) Regulations 2007 to 2014, and any regulations amending those regulations, and the Data Protection Acts 1988 to 2018, the documents placed on the planning authority’s website pursuant to subsection (3)(b) shall be maintained and available for inspection thereon in perpetuity.]
(4) Copies of documents under this section shall be available for purchase on payment of a specified fee not exceeding the reasonable cost of making such a copy.
(5) At the end of the period for the availability of documents referred to in subsection (2), a planning authority shall retain at least one original copy of each of those documents in a local archive in accordance with section 65 of the Local Government Act, 1994 .
(6) The Minister may prescribe additional requirements in relation to the availability for inspection by members of the public of documents relating to planning applications.
(7) This section shall apply in respect of any application made to a planning authority after the commencement of this section.
Annotations
Amendments:
F431
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 25, S.I. No. 436 of 2018.
F432
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 20, in effect as per reg. 2(1).
F433
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 27(b), S.I. No. 477 of 2010.
F434
Deleted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 191, S.I. No. 174 of 2018.
F435
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(b), in effect as per reg. 2(1).
F436
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(b), in effect as per reg. 2(1).
Modifications (not altering text):
C82
Application of section and regulations made thereunder restricted (1.05.2007) by European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), reg. 4(2)(a).
Scope
4. (1) These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.
(2) Notwithstanding—
(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000) and any regulations made thereunder,
…
environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.
Editorial Notes:
E187
Power pursuant to subs. (6) exercised (22.05.2020) by Planning and Development Act 2000 (Section 38) Regulations 2020 (S.I. No. 180 of 2020).
E188
Previous affecting provision: subs. (1) amended (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(a), in effect as per reg. 2(1); subsection substituted as per F-note above.
E189
Previous affecting provision: subs. (1) substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 27(a), S.I. No. 477 of 2010; substituted as per F-note above.
E190
Previous affecting provision: subs. (2) amended (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 11, S.I. No. 525 of 2006; amendment deleted as per F-note above.
Supplemental provisions as to grant of permission.
39.—(1) Where permission to develop land or for the retention of development is granted under this Part, then, except as may be otherwise provided by the permission, the grant of permission shall enure for the benefit of the land and of all persons for the time being interested therein.
(2) Where permission is granted under this Part for a structure, the grant of permission may specify the purposes for which the structure may or may not be used, and in case the grant specifies use as a dwelling as a purpose for which the structure may be used, the permission may also be granted subject to a condition specifying that the use as a dwelling shall be restricted to use by persons of a particular class or description and that provision to that effect shall be embodied in an agreement under section 47.
(3) (a) Where permission to develop land is granted under this Part for a limited period only, nothing in this Part shall be construed as requiring permission to be obtained thereunder for the resumption, at the expiration of that period, of the use of the land for the purpose for which it was normally used before the permission was granted.
(b) In determining for the purposes of this subsection the purposes for which land was normally used before the grant of permission, no account shall be taken of any use of the land begun in contravention of this Part.
(4) Notwithstanding anything in this Part, permission shall not be required under this Part, in the case of land which, on 1 October, 1964, was normally used for one purpose and was also used on occasions, whether at regular intervals or not, for any other purpose, for the use of the land for that other purpose on similar occasions after 1 October, 1964.
Limit of duration of permission.
40.—(1) Subject to subsection (2), a permission granted under F438[this Part or Part XXI], shall on the expiration of the appropriate period (but without prejudice to the validity of anything done pursuant thereto prior to the expiration of that period) cease to have effect as regards—
(a) in case the development to which the permission relates is not commenced during that period, the entire development, and
(b) in case the development is commenced during that period, so much of the development as is not completed within that period.
(2) (a) Subsection (1) shall not apply—
(i) to any permission for the retention on land of any structure,
(ii) to any permission granted either for a limited period only or subject to a condition which is of a kind described in section 34(4)(n),
(iii) in the case of a house, shop, office or other building which itself has been completed, in relation to the provision of any structure or works included in the relevant permission and which are either necessary for or ancillary or incidental to the use of the building in accordance with that permission, or
(iv) in the case of a development comprising a number of buildings of which only some have been completed, in relation to the provision of roads, services and open spaces included in the relevant permission and which are necessary for or ancillary or incidental to the completed buildings.
(b) Subsection (1) shall not affect—
(i) the continuance of any use, in accordance with a permission, of land,
(ii) where a development has been completed (whether to an extent described in paragraph (a) or otherwise), the obligation of any person to comply with any condition attached to the relevant permission whereby something is required either to be done or not to be done.
(3) F437[In this section and sections 42 and 42A,], “the appropriate period” means—
(a) in case in relation to the permission a period is specified pursuant to section 41, that period, and
(b) in any other case, the period of five years beginning on the date of the grant of permission.
Annotations
Amendments:
F437
Substituted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3, part 8, item 1, S.I. No. 545 of 2009.
F438
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 14, S.I. No. 488 of 2022.
F439[
Power to vary appropriate period.
41. (1) Without prejudice to the powers conferred on them by F440[this Part and Part XXI] to grant a permission to develop land for a limited period only, in deciding to grant a permission under F440[section 34, 37, 37G, 37N or 293], a planning authority or the Board, as may be appropriate, may, having regard to the nature and extent of the relevant development and any other material consideration, specify the period during which the permission is to have effect, being a period—
(a) in the case of all development requiring permission, of not less than 2 years, and
(b) in the case of residential development requiring permission, of not more than 10 years,
and where the planning authority or the Board exercises, or refuses to exercise, the power conferred on it by this section, the exercise or refusal shall be regarded as forming part of the relevant decision of the authority or the Board under F440[section 34, 37, 37G, 37N or 293].
(2) Where an application for permission relates to a residential development comprising 10 or more houses—
(a) material considerations in subsection (1) may include any information available to the planning authority or furnished to it by the applicant concerning implementation by the applicant of any housing development in the previous 5 years, and
(b) an assessment by the planning authority of the likelihood of the proposed development being implemented within the appropriate period sought, being the appropriate period within the meaning provided for by section 40(3).]
Annotations
Amendments:
F439
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 26(1), S.I. No. 436 of 2018.
F440
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 15, S.I. No. 488 of 2022.
Modifications (not altering text):
C83
Section construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 14, S.I. No. 270 of 2017.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 41 (power to vary appropriate period) of Act of 2000 during specified period
14. Section 41 of the Act of 2000 has effect during the specified period—
(a) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N,” where it first occurs, and
(b) as if “, or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 37N” where it last occurs.
Editorial Notes:
E191
Previous affecting provision: section amended (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 5; section substituted as per F-note above.
E192
Previous affecting provision: section amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 12(a), S.I. No. 684 of 2006; substituted as per F-note above.
E193
Previous affecting provision: section amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 12(b), S.I. No. 684 of 2006; section substituted as per F-note above.
Power to extend appropriate period.
F441[42.— (1) F442[On application to it in that behalf, but subject to subsection (8),] a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that each of the following requirements is complied with:
F443[(a) (i) the authority is satisfied that—
(I) the development to which the permission relates was commenced before the expiration of the appropriate period sought to be extended,
(II) F444[…]
(III) substantial works were carried out pursuant to the permission during that period, and
(IV) the development will be completed within a reasonable time, ]
(b) the application is in accordance with such regulations under this Act as apply to it,
(c) any requirements of, or made under those regulations are complied with as regards the application, and
(d) the application is duly made prior to the end of the appropriate period.
(2) In extending the appropriate period under subsection (1) a planning authority may attach conditions requiring the giving of adequate security for the satisfactory completion of the proposed development, and/or may add to or vary any conditions to which the permission is already subject under section 34(4)(g).
(3) (a) Where an application is duly made under this section to a planning authority and any requirements of, or made under, regulations under section 43 are complied with as regards the application, the planning authority shall make its decision on the application as expeditiously as possible.
(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the planning authority to ensure that it shall give notice of its decision on an application under this section within the period of 8 weeks beginning on—
(i) in case all of the requirements referred to in paragraph (a) are complied with on or before the day of receipt by the planning authority of the application, that day, and
(ii) in any other case, the day on which all of those requirements stand complied with.
F443[(4) A decision to extend the appropriate period of a permission shall be made not more than twice under this section and a planning authority shall not further extend the appropriate period. Where a second decision to extend an appropriate period is made under this section, the combined duration of the 2 extensions of the appropriate period shall not exceed 5 years.]
(5) Particulars of any application made to a planning authority under this section and of the decision of the planning authority in respect of the application shall be recorded on the relevant entry in the register.
(6) Where a decision to extend is made under this section, section 40 shall, in relation to the permission to which the decision relates, be construed and have effect, subject to, and in accordance with, the terms of the decision.
(7) Notwithstanding subsection (1) or (4), where a decision to extend an appropriate period has been made by a planning authority prior to the coming into operation of this section, the planning authority, where an application is made to it in that behalf prior to the expiration of the period by which the appropriate period was extended, may further extend the appropriate period provided that each of the following requirements is complied with—
(i) an application is made in that behalf in accordance with regulations under section 43,
(ii) any requirements of, or made under, the regulations are complied with as regards the application, and
(iii) the authority is satisfied that the relevant development has not been completed due to circumstances beyond the control of the person carrying out the development.]
F446[(8) A planning authority shall not extend the appropriate period under this section in relation to a permission if an environmental impact assessment or an appropriate assessment would be required in relation to the proposed extension concerned.]
Annotations
Amendments:
F441
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 28, S.I. No. 405 of 2010.
F442
Substituted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(a)(i), in effect as per reg. 1(2).
F443
Substituted (9.09.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(1), S.I. No. 455 of 2021, as substituted (19.07.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 57(1), commenced on enactment as per subs. (2).
F444
Deleted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(a)(ii), in effect as per reg. 1(2).
F445
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 77, S.I. No. 214 of 2014.
F446
Inserted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(c), in effect as per reg. 1(2).
F447
Inserted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(b)(i), (ii), in effect as per reg. 1(2).
Modifications (not altering text):
C84
Section construed (23.12.2016 (date of enactment) for period to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(2)(a), S.I. No. 341 of 2017, as substituted (19.07.2017) by Planning and Development (Amendment) Act 2017 (20/2017), s. 1, commenced on enactment; and further construed (23.12.2016 (date of enactment) for period to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(2)(b), (c), S.I. No. 341 of 2017.
Amendment, etc., of section 42 (power to extend appropriate period) of Act of 2000
28. …
(2) During the period from the passing of this Act until 31 December 2021, section 42 of the Act of 2000 has effect—
[(a) as if the following subsection were inserted after subsection (1):
‘(1A) (a) “F447[Notwithstanding anything to the contrary in subsection (1) or (4) but subject to subsection (8)” for “Notwithstanding anything to the contrary in subsection (1) or (4)], a planning authority shall—
F447[(i) in relation to permission for development consisting of the construction of not less than 20 houses,]
(ii) upon application being duly made to the authority setting out the reasons why the development cannot be reasonably completed within the appropriate period,
further extend the appropriate period by such additional period not exceeding 5 years, or until 31 December 2021, whichever first occurs, but the authority shall only so extend that period where the authority—
(I) considers it requisite to enable the development to which the permission relates to be completed,
(II) is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2016 as apply to the application,
(III) is satisfied that any requirements of, or made under those regulations are complied with as regards the application,
(IV) is satisfied that the development to which the permission relates was—
(A) commenced, and
(B) substantial works were carried out,
before the expiration of the appropriate period or any extension of that period, and
(V) is satisfied that in the case of a permission—
(A) where the expiry of the appropriate period as extended occurred or occurs during the period from 19 July 2016 to the day preceding the day that section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 comes into operation, the application is duly made within 6 months of the said commencement date, or
(B) where the appropriate period as extended expires on or after the date of commencement of section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016, the application is duly made within the period prescribed for the purposes of section 43(2).’]
(b) as if in subsection (2) there were substituted “subsection (1) or (1A)” for “subsection (1)”, and
(c) as if in subsection (4) there were substituted “Except where subsection (1A) applies, a decision” for “A decision”.
Editorial Notes:
E194
Previous affecting provision: subs. (1)(a)(ii)(II) amended (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 77, S.I. No. 214 of 2014; substituted as per F-note above.
F448[ Power to extend appropriate period on application of NAMA.
42A.—F449[…]]
Annotations
Amendments:
F448
Inserted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3 part 8 item 2, S.I. No. 545 of 2009.
F449
Repealed (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 26(2), S.I. No. 436 of 2018.
Editorial Notes:
E195
Previous affecting provision: subs. (1) amended (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 78, S.I. No. 214 of 2014; section repealed as per F-note above.
E196
Previous affecting provision: subss. (1), (2) substituted and subs. (8) inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 29(a)- (c), S.I. No. 405 of 2010; section repealed as per F-note above.
E197
Previous affecting provision: subss. (1) and (2) substituted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3, part 8, item 2, S.I. No. 545 of 2009; substituted as per E-note above.
F450[
Modification to operation of section 42 of Act of 2000 having regard to Covid-19
42B. During the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on 31 December 2023, section 42 shall be construed and have effect—
(a) as if the following subsection were inserted after subsection (1A):
“(1B) Notwithstanding anything to the contrary in subsection (1), (1A) or (4) a planning authority shall—
(a) as regards a particular permission in respect of a development, and
(b) upon application being duly made to the authority setting out the reasons why the development cannot be reasonably completed within the appropriate period,
further extend the appropriate period, as extended or further extended, by such additional period not exceeding 2 years or until 31 December 2023, whichever first occurs, but the authority shall only so extend that period where the authority—
(i) is satisfied that an environmental impact assessment or an appropriate assessment would not be required in relation to the proposed extension of the appropriate period,
(ii) considers that the extension is required to enable the development to which the permission relates to be completed,
(iii) is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2021 as apply to the application,
(iv) is satisfied that any requirements of, or made under, those regulations are complied with as regards the application,
(v) is satisfied that the development to which the permission relates was—
(I) commenced, and
(II) substantial works were carried out, before the expiration of the appropriate period, as extended or further extended, and
(vi) is satisfied that in the case of a permission—
(I) where the expiry of the appropriate period as extended or further extended occurred or occurs during the period beginning on 8 January 2021 and ending on the day before the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation, the application is duly made within 6 months of the date on which the said section 7 comes into operation, or
(II) where the appropriate period, as extended or further extended, expires on or after the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation, the application is duly made within the period prescribed for the purposes of section 43(2).”,
(b) as if in subsection (2)—
(i) during the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “subsection (1), (1A) or (1B)” for “subsection (1) or (1A)”, and
(ii) during the period beginning on the date that is the day after the date on which the amendments to section 42 effected by section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “subsection (1) or (1B)” for “subsection (1)”, and
(c) as if in subsection (4)—
(i) during the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “Except where subsection (1A) or (1B) applies, a decision” for “Except where subsection (1A) applies, a decision”, and
(ii) during the period beginning on the date that is the day after the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “Except where subsection (1B) applies, a decision” for “A decision”.]
Annotations:
Amendments:
F450
Inserted (9.09.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 7, S.I. No. 458 of 2021.
Regulations regarding sections 40, 41 and 42.
43.—(1) The Minister may make regulations providing for any matter of procedure in relation to applications under section 42 and making such incidental, consequential or supplementary provision as may appear to him or her to be necessary or proper to give full effect to any of the provisions of section 40, 41 or 42.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) specify the time at which applications under section 42 may be made, the manner in which those applications shall be made and the particulars they shall contain,
(b) require applicants to furnish to the planning authority any specified information with respect to their applications (including any information regarding any estate or interest in or right over land),
(c) require applicants to submit to a planning authority any further information relevant to their applications (including any information as to any such estate, interest or right),
(d) require the production of any evidence to verify any particulars or information given by any applicant, and
(e) require the notification (in a prescribed manner) by planning authorities of decisions on applications.
Annotations
Editorial Notes:
E198
Power pursuant to section exercised (9.09.2021 to 31.12.2021) by Planning and Development (Amendment) (No. 3) Regulations 2021 (S.I. No. 459 of 2021), in effect as per reg. 2(1), (2).
E199
Power pursuant to section exercised (9.08.2017) by Planning and Development (Amendment) Regulations 2017 (S.I. No. 342 of 2017), in effect as per reg. 2(1).
E200
Power pursuant to section exercised (19.08.2010) by Planning and Development Regulations 2010 (S.I. No. 406 of 2010).
E201
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Revocation or modification of permission.
44.—(1) If the planning authority considers that it is expedient that any permission to develop land granted under F451[this Part or Part XXI] should be revoked or modified, it may serve a notice in accordance with subsection (3) on the applicant and on any other person who, in its opinion, will be materially affected by the revocation or modification.
(2) A planning authority shall neither revoke nor modify a permission under this section unless the development to which the permission relates no longer conforms with the provisions of the development plan.
(3) The notice referred to in subsection (1) shall—
(a) refer to the permission concerned,
(b) specify the provisions of the development plan to which the permission no longer conforms, and
(c) invite the person or persons served with the notice to make written submissions or observations to the planning authority within the period specified in the notice (being not less than 4 weeks from the service of the notice) concerning the proposed revocation or modification.
(4) A planning authority may decide to revoke or modify a permission and, when making its decision, shall have regard to any submissions or observations made under subsection (3) (c).
(5) Where a planning authority decides to revoke or modify a permission under subsection (4), it shall specify in the decision the provisions of the development plan to which the permission no longer conforms, and the main reasons and considerations on which the decision is based.
(6) A person served with a notice under subsection (1) may, at any time within 4 weeks of the date of the decision, appeal to the Board against the decision.
(7) Where an appeal is brought under this section against a decision, the Board may confirm the decision with or without modifications, or annul the decision, and it shall specify the main reasons and considerations for its decision.
(8) The power conferred by this section to revoke or modify permission to develop land may be exercised—
(a) where the permission relates to the carrying out of works, at any time before those works have been commenced or, in the case of works which have been commenced and which, consequent on the making of a variation in the development plan, will contravene the plan, at any time before those works have been completed,
(b) where the permission relates to a change of the use of any land, at any time before the change has taken place,
but the revocation or modification of permission for the carrying out of works shall not affect so much of the works as have been previously carried out.
(9) A planning authority may at any time, for stated reasons, by notice in writing withdraw a notice served under this section.
(10) Particulars of a decision made under this section shall be entered in the register.
(11) The revocation or modification under this section of a permission shall be a reserved function.
Annotations
Amendments:
F451
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 16, S.I. No. 488 of 2022.
Editorial Notes:
E202
The revocation or modification of a permission to develop land if the development to which the permission relates no longer conforms with the provisions of the development plan is a reserved function of local authorities as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 3 item 70 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 41(4) and sch. 3, S.I. No. 214 of 2014.
F452[
Revocation or modification of planning permission for certain reasons
44A. (1) The Minister may, upon the request of the Minister for Justice and Equality, the Minister for Foreign Affairs and Trade or the Minister for Defence and with the approval of the Government, make an order revoking or modifying a grant of permission under this Act if he or she is satisfied that—
(a) the carrying out of the development to which the grant of permission relates is likely to be harmful to—
(i) the security or defence of the State, or
(ii) the State’s relations with other states,
and
(b) the revocation or modification concerned is necessary in the public interest.
(2) The Minister may, before making an order under this section, consult with—
(a) the planning authority that granted the permission concerned,
(b) the person to whom the permission was granted, or
(c) any other person who, in the opinion of the Minister, is likely to be materially affected by the making of such order,
but shall not so consult if he or she considers that to do so would be harmful to the security or defence of the State or to the State’s relations with other states.
(3) This section shall apply to permissions whether granted before, on or after the passing of the Planning and Development (Amendment) Act 2018.
(4) Where an order is made under this section, the planning authority that granted the permission to which the order relates shall, within such period as may be specified in the order, serve—
(a) a notice in writing on—
(i) the person to whom the permission concerned was granted, and
(ii) any other person specified in the order,
informing him or her of the revocation or modification effected by the order, and
(b) a notice in writing—
(i) in the case of development commenced but not completed, on any person carrying out the development in respect of which the permission was granted, or on whose behalf such development is being carried out, requiring him or her to cease the development and restore the land, on which the development concerned is being carried out, to the condition it was in before the development commenced, or
(ii) in the case of development completed, on any person who carried out the development, or on whose behalf the development was carried out, requiring him or her to restore the land, on which the development concerned was carried out, to the condition it was in before the development was commenced.
(5) A person on whom a notice is served under paragraph (b) of subsection (4) shall comply with the notice.
(6) (a) The Minister shall, as soon as practicable after the making of an order under this section, give a copy of the order to the planning authority that granted the permission to which the order relates.
(b) A planning authority shall, as soon as practicable after the copy of an order has been given to it in accordance with paragraph (a), give a copy of the order to—
(i) the person to whom the permission to which the order applies was granted, and
(ii) any other person the Minister may direct.
(7) A permission to which an order under this section applies shall, upon the making of the order, stand revoked or modified, as may be appropriate, in accordance with the order.
(8) Any development carried out in contravention of an order under this section shall be an unauthorised development.
(9) Where the Minister makes an order revoking an order under this section—
(a) the second-mentioned order shall, for all purposes, be deemed never to have been made, and the register shall be amended accordingly, and
(b) the period between the making of the second-mentioned order and the first-mentioned order shall not be reckonable for the purpose of calculating the period since the granting of the permission.
(10) The Minister shall not, in relation to a permission, make an order under this section if the period since the grant of the permission exceeds 5 years.
(11) The making of an order under this section shall be recorded in the register as soon as may be after it is made.
(12) (a) Any proceedings before a court relating to an order under this section shall be heard in camera.
(b) A court before which proceedings relating to an order under this section are heard shall take all reasonable precautions to prevent the disclosure—
(i) to the public, or
(ii) where the court considers it appropriate, to any party to the proceedings,
of any evidence given or document submitted for the purposes of the proceedings, the disclosure of which, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.
(c) Without prejudice to the generality of paragraph (b), precautions referred to in that paragraph may include—
(i) the prohibition of the disclosure of such evidence or documentation as the Court may determine, and
(ii) the hearing, in the absence of any person or persons including any party to the proceedings, of any evidence or the examination of any witness or document that, in the opinion of the Court, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.]
Annotations
Amendments:
F452
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 27, S.I. No. 436 of 2018.
Editorial Notes:
E203
The section heading is taken from the amending section in the absence of one included in the amendment.
Acquisition of land for open spaces.
45.—(1) Where—
(a) development is being or has been carried out pursuant to a permission under section 34,
(b) (i) a condition requiring the provision or maintenance of land as open space, being open space to which this section applies, was attached to the permission, or
(ii) it was either explicit or implicit in the application for the permission that land would be provided or maintained as such open space,
(c) the planning authority has served on the owner of the land a written request that, within a period specified in the request (being a period of not less than 8 weeks commencing on the date of the request), he or she will provide, level, plant or otherwise adapt or maintain the land in a manner so specified, being a manner which in its opinion would make it suitable for the purpose for which the open space was to be provided, and
(d) the owner fails to comply or to secure compliance with the request within the period so specified,
the planning authority may, if it thinks fit, publish in a newspaper circulating in the district a notice (an “acquisition notice”) of its intention to acquire the land by order under this section and the acquisition notice shall specify a period (being a period of not less than 4 weeks commencing on the date on which the notice is published) within which an appeal may be made under this section.
(2) Where a planning authority publishes an acquisition notice, it shall serve a copy of the notice on the owner of the land to which the notice relates not later than 10 days after the date of the publication.
(3) Any person having an interest in the land to which an acquisition notice relates may within the period specified in the notice appeal to the Board.
(4) Where an appeal is brought under this section the Board may—
(a) annul the acquisition notice to which the appeal relates, or
(b) confirm the acquisition notice, with or without modification, in respect of all or such part of the relevant land as the Board considers reasonable.
(5) If a planning authority publishes an acquisition notice and either—
(a) the period for appealing against the notice has expired and no appeal has been taken, or
(b) an appeal has been taken against the notice and the appeal has been withdrawn or the notice has been confirmed whether unconditionally or subject to modifications,
the planning authority may make an order in the prescribed form which order shall be expressed and shall operate to vest the land to which the acquisition notice, or, where appropriate, the acquisition notice as confirmed, relates in the planning authority on a specified date for all the estate, term or interest for which immediately before the date of the order the land was held by the owner together with all rights and liabilities which, immediately before that date, were enjoyed or incurred in connection therewith by the owner together with an obligation to comply with the request made under subsection (1)(c).
(6) Where a planning authority has acquired by an order under this section land which is subject, either alone or in conjunction with other land, to a purchase annuity, payment in lieu of rent, or other annual sum (not being merely a rent under a contract of tenancy) payable to the Minister for Agriculture. Food and Rural Development or to the Commissioners, the authority shall become and be liable, as from the date on which the land is vested in them by the vesting order, for the payment to that Minister or to the Commissioners, as the case may be, of the annual sum or such portion thereof as shall be apportioned by that Minister or by the Commissioners, on the land as if the land had been transferred to the authority by the owner thereof on that date.
(7) When a planning authority makes an order under this section in relation to any land, it shall send the order to the registering authority under the Registration of Title Act, 1964, and thereupon the registering authority shall cause the planning authority to be registered as owner of the land in accordance with the order.
(8) Where a claim is made for compensation in respect of land to which an order under this section relates, the claim shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, in the like manner in all respects as if such claim arose in relation to the compulsory acquisition of land, but subject to the proviso that the arbitrator shall have jurisdiction to make a nil award and to the following provisions:
(a) the arbitrator shall make a nil award, unless it is shown by or on behalf of the owner that an amount equal to the value of the land to which the relevant permission under section 34 relates, being that value at the time when the application for the permission was made, as a result of the development has not been recovered and as a further such result will not in the future be recoverable by disposing of the land which is land to which the permission relates and which is not land to which the order relates, and
(b) in the assessment of the value of the land to which the order relates, no regard shall be had to its value for use other than as open space and a deduction shall be made in respect of the cost of carrying out such works as may be necessary to comply with the request made pursuant to subsection (1)(c).
(9) A planning authority shall enter in the register—
(a) particulars of any acquisition notice published by it,
(b) the date and effect of any decision on appeal in relation to any such notice, and
(c) particulars of any order made under this section,
and every entry shall be made within the period of 7 days commencing on the day of publication, receipt of notification of the decision or the making of the order, as may be appropriate.
(10) This section applies to any form of open space (whether referred to as open space or by any other description in the relevant application for a permission or in a condition attached to the relevant permission), being land which is not described in the application or condition either as private open space or in terms indicating that it is not intended that members of the public are to have resort thereto without restriction.
Annotations
Editorial Notes:
E204
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Requiring removal or alteration of structure or discontinuance of use.
46.—(1) If a planning authority decides that, in exceptional circumstances—
(a) any structure should be demolished, removed, altered or replaced,
(b) any use should be discontinued, or
(c) any conditions should be imposed on the continuance of a use,
the planning authority may serve a notice on the owner and on the occupier of the structure or land concerned and on any other person who, in its opinion, will be affected by the notice.
(2) Subsection (1) shall not apply to any unauthorised development unless the notice under this section is served after seven years from the commencement of the unauthorised development.
(3) A notice referred to in subsection (1) shall—
(a) specify the location of the structure or land concerned,
(b) specify the steps that will be required to be taken within a specified period, including, where appropriate—
(i) the demolition, removal, alteration or replacement of any structure, or
(ii) the discontinuance of any use or the continuance of any use subject to conditions,
and
(c) invite any person served with the notice to make written submissions or observations to the planning authority in respect of the matters referred to in the notice within a specified period (being not less than 4 weeks from the date of service of the notice).
(4) A planning authority may, having regard to any submissions or observations made in accordance with subsection (3) (c), decide to confirm the notice, with or without modifications, or not to confirm the notice.
(5) A planning authority, in deciding whether to confirm a notice pursuant to this section, shall consider—
(a) the proper planning and sustainable development of the area,
(b) the provisions of the development plan,
(c) the provisions of any special amenity area order, any European site or other area designated for the purposes of section 10(2) (c) relating to the area, and
(d) any other relevant provision of this Act and any regulations made thereunder.
(6) Where a notice is confirmed by a planning authority under subsection (4), any person served with the notice may, within 8 weeks of the date of service of the notice, appeal to the Board against the notice.
(7) Where an appeal is brought under this section against a notice, the Board may confirm the notice with or without modifications or annul the notice, and the provisions of subsection (5) shall apply, subject to any necessary modifications, to the deciding of an appeal under this subsection by the Board, as they apply to the making of a decision by the planning authority.
(8) A notice under this section (other than a notice which is annulled) shall take effect—
(a) in case no appeal against it is taken, on the expiration of the period for taking an appeal, or
(b) in case an appeal or appeals are taken against it and not withdrawn, when the appeal or appeals have been either withdrawn or decided.
(9) If, within the period specified in a notice under this section, or within such extended period as the planning authority may allow, any demolition, removal, alteration or replacement required by the notice has not been effected, the planning authority may enter the structure and may effect such demolition, removal, alteration or replacement as is specified in the notice.
(10) Where a notice under this section is complied with, the planning authority shall pay to the person complying with the notice the expenses reasonably incurred by the person in carrying out the demolition, removal, alteration or replacement specified in the notice, less the value of any salvageable materials.
(11) Where any person served with a notice under this section fails to comply with the requirements of the notice, or causes or permits the failure to comply with the requirements, he or she shall be guilty of an offence.
(12) Particulars of a notice served or confirmed under this section shall be entered in the register.
(13) (a) A planning authority may, for stated reasons, by notice in writing withdraw a notice served under this section.
(b) Where a notice is withdrawn pursuant to this subsection by a planning authority, the fact that the notice was withdrawn shall be recorded by the authority in the register.
Agreements regulating development or use of land.
47.—(1) A planning authority may enter into an agreement with any person interested in land in their area, for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be specified by the agreement, and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the planning authority to be necessary or expedient for the purposes of the agreement.
(2) A planning authority in entering into an agreement under this section may join with any body which is a prescribed authority for the purposes of section 11.
(3) An agreement made under this section with any person interested in land may be enforced by the planning authority, or any body joined with it, against persons deriving title under that person in respect of that land as if the planning authority or body, as may be appropriate, were possessed of adjacent land, and as if the agreement had been expressed to be made for the benefit of that land.
(4) Nothing in this section, or in any agreement made thereunder, shall be construed as restricting the exercise, in relation to land which is the subject of any such agreement, of any powers exercisable by the Minister, the Board or the planning authority under this Act, so long as those powers are not exercised so as to contravene materially the provisions of the development plan, or as requiring the exercise of any such powers so as to contravene materially those provisions.
(5) Particulars of an agreement made under this section shall be entered in the register.
Development contributions.
48.—(1) A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities).
(2) (a) Subject to paragraph (c), the basis for the determination of a contribution under subsection (1) shall be set out in a development contribution scheme made under this section, and a planning authority may make one or more schemes in respect of different parts of its functional area.
(b) A scheme may make provision for payment of different contributions in respect of different classes or descriptions of development.
(c) A planning authority may, in addition to the terms of a scheme, require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.
(3) (a) A scheme shall state the basis for determining the contributions to be paid in respect of public infrastructure and facilities, in accordance with the terms of the scheme.
(b) In stating the basis for determining the contributions in accordance with paragraph (a), the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities, except that any benefit which accrues in respect of existing development may not be included in any such determination.
(c) A scheme may allow for the payment of a reduced contribution or no contribution in certain circumstances, in accordance with the provisions of the scheme.
F453[(3A) Where a permission which includes conditions referred to in subsection (1) has been granted under section 34 in respect of a development and the basis for the determination of the contribution under subsection (1) has changed—
(a) where the development is one to which Part II of the Building Control Regulations 1997 (S.I. No. 496 of 1997) applies and a commencement notice within the meaning of that Part in respect of the development has not been lodged, or
F454[(b) where the development comprises houses and one or more of those houses has not been rented, leased, occupied or sold,]
the planning authority shall apply that change to the conditions of the permission where to do so would reduce the amount of the contribution payable.
F454[(3B) Where a development referred to in subsection (3A) comprises houses one or more of which has not been rented, leased, occupied or sold the planning authority shall apply the change in the basis for the determination of the contribution referred to in that subsection only in respect of any house or houses that have not been rented, leased, occupied or sold.]
(3C) Where the planning authority applies a change in the basis for the determination of a development contribution under subsection (3A) it may amend a condition referred to in subsection (1) in order to reflect the change.]
(4) Where a planning authority proposes to make a scheme under this section, it shall publish in one or more newspapers circulating in the area to which the scheme relates, a notice—
(a) stating that a draft scheme has been prepared,
(b) giving details of the proposed contributions under the draft scheme,
(c) indicating the times at which, the period (which shall be not less than 6 weeks) during which, and the place where, a copy of the draft scheme may be inspected, and
(d) stating that submissions or observations may be made in writing to the planning authority in relation to the draft scheme, before the end of the period for inspection.
(5) (a) In addition to the requirements of subsection (4), a planning authority shall send a copy of the draft scheme to the Minister.
(b) The Minister may make recommendations to the planning authority regarding the terms of the draft scheme, within 6 weeks of being sent the scheme.
(6) (a) Not later than 4 weeks after the expiration of the period for making submissions or observations under subsection (4), the F455[chief executive] of a planning authority shall prepare a report on any submissions or observations received under that subsection, and submit the report to the members of the authority for their consideration.
(b) A report under paragraph (a) shall—
(i) list the persons or bodies who made submissions or observations under this section,
(ii) summarise the issues raised by the persons or bodies in the submissions or observations, and
(iii) give the response of the F455[chief executive] to the issues raised, taking account of the proper planning and sustainable development of the area.
(7) The members of the planning authority shall consider the draft scheme and the report of the F455[chief executive] under subsection (6), and shall have regard to any recommendations made by the Minister under subsection (5).
(8) (a) Following the consideration of the F455[chief executive’s report], and having had regard to any recommendations made by the Minister, the planning authority shall make the scheme, unless it decides, by resolution, to vary or modify the scheme, otherwise than as recommended in the F455[chief executive’s report], or otherwise decides not to make the scheme.
(b) A resolution under paragraph (a) must be passed not later than 6 weeks after receipt of the F455[chief executive’s report].
(9) (a) Where a planning authority makes a scheme in accordance with subsection (8), the authority shall publish notice of the making, or approving, of the scheme, as the case may be, in at least one newspaper circulating in its area.
(b) A notice under paragraph (a) shall—
(i) give the date of the decision of the planning authority in respect of the draft scheme,
(ii) state the nature of the decision, and
(iii) contain such other information as may be prescribed.
(10) (a) Subject to paragraph (b), no appeal shall lie to the Board in relation to a condition requiring a contribution to be paid in accordance with a scheme made under this section.
(b) An appeal may be brought to the Board where an applicant for permission under section 34 considers that the terms of the scheme have not been properly applied in respect of any condition laid down by the planning authority.
(c) Notwithstanding section 34(11), where an appeal is brought in accordance with paragraph (b), and no other appeal of the decision of a planning authority is brought by any other person under section 37, the authority shall make the grant of permission as soon as may be after the expiration of the period for the taking of an appeal. provided that the person who takes the appeal in accordance with paragraph (b) furnishes to the planning authority security for payment of the full amount of the contribution as specified in the condition.
(11) Where an appeal is brought to the Board in respect of a refusal to grant permission under this Part, and where the Board decides to grant permission, it shall, where appropriate, apply as a condition to the permission the provisions of the contribution scheme for the time being in force in the area of the proposed development.
(12) Where payment of a special contribution is required in accordance with subsection (2) (c), the following provisions shall apply—
(a) the condition shall specify the particular works carried out, or proposed to be carried out, by any local authority to which the contribution relates,
(b) where the works in question—
F456[(i) are not commenced within 5 years of the date of payment to the authority of the contribution (or final instalment thereof, if paid by phased payment under subsection (15)(a)),
(ii) have commenced, but have not been completed within 7 years of the date of payment to the authority of the contribution (or final instalment thereof, if paid by phased payment under subsection (15)(a)), or]
(iii) where the local authority decides not to proceed with the proposed works or part thereof.
the contribution shall, subject to paragraph (c), be refunded to the applicant together with any interest that may have accrued over the period while held by the local authority,
(c) where under subparagraph (ii) or (iii) of paragraph (b), any local authority has incurred expenditure within the required period in respect of a proportion of the works proposed to be carried out, any refund shall be in proportion to those proposed works which have not been carried out.
(13) (a) Notwithstanding sections 37 and 139, where an appeal received by the Board after the commencement of this section relates solely to a condition dealing with a special contribution, and no appeal is brought by any other person under section 37 of the decision of the planning authority under that section, the Board shall not determine the relevant application as if it had been made to it in the first instance, but shall determine only the matters under appeal.
(b) Notwithstanding section 34(11), where an appeal referred to in paragraph (a) is received by the Board, and no appeal is brought by any other person under section 37, the authority shall make the grant of permission as soon as may be after the expiration of the period for the taking of an appeal, provided that the person who takes the appeal furnishes to the planning authority, pending the decision of the Board, security for payment of the full amount of the special contribution as specified in the condition referred to in paragraph (a).
(14) (a) Money accruing to a local authority under this section shall be accounted for in a separate account, and shall only be applied as capital for public infrastructure and facilities.
(b) A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of monies paid or owing to it under this section and shall indicate how such monies paid to it have been expended by any local authority.
(15) (a) A planning authority may facilitate the phased payment of contributions under this section, and may require the giving of security to ensure payment of contributions.
(b) Where a contribution is not paid in accordance with the terms of the condition laid down by the planning authority, any outstanding amounts due to the planning authority shall be paid together with interest that may have accrued over the period while withheld by the person required to pay the contribution.
(c) A planning authority may recover, as a simple contract debt in a court of competent jurisdiction, any contribution or interest due to the planning authority under this section.
(16) (a) A planning authority shall make a scheme or schemes under this section within 2 years of the commencement of this section.
(b) Notwithstanding the repeal of any enactment by this Act, the provisions of section 26 of the Act of 1963, in relation to requiring contributions in respect of expenditure by local authorities on works which facilitate development, shall continue to apply pending the making of a scheme under this section, but shall not apply after two years from the commencement of this section.
(17) In this section—
“public infrastructure and facilities” means—
(a) the acquisition of land,
(b) the provision of open spaces, recreational and community facilities and amenities and landscaping works,
F454[(c) the provision of roads, car parks, car parking places, surface water sewers and flood relief work, and ancillary infrastructure,]
(d) the provision of bus corridors and lanes, bus interchange facilities (including car parks for those facilities), infrastructure to facilitate public transport, cycle and pedestrian facilities, and traffic calming measures,
F456[F454[(e) the refurbishment, upgrading, enlargement or replacement of roads, car parks, car parking places, surface water sewers, flood relief work and ancillary infrastructure,]
(f) the provision of high-capacity telecommunications infrastructure, such as broadband,
(g) the provision of school sites, and
(h) any matters ancillary to paragraphs (a) to (g).]
“scheme” means a development contribution scheme made under this section;
“special contribution” means a special contribution referred to in subsection (2)(c).
Annotations
Amendments:
F453
Inserted (1.09.2015) by Urban Regeneration and Housing Act 2015 (33/2015), s. 29, S.I. No. 364 of 2015.
F454
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 28(1), (2)(a), (b), S.I. No. 436 of 2018.
F455
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. nos. 52-54, S.I. No. 436 of 2018.
F456
Substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 30, S.I. No. 477 of 2010.
Modifications (not altering text):
C85
Certain functions transferred to Cork City Council as a result of the Cork City and Council areas boundary alteration (31.01.2019) by Local Government Act 2019 (1/2019), s. 31, S.I. No. 20 of 2019.
Planning applications and development contribution schemes
31. (1) For the purposes of the Act of 2000 or any instrument under that Act and subject to subsection (2), the county council shall, after the transfer day, be the planning authority in relation to any planning application made before the transfer day in respect of development or proposed development in the relevant area.
(2) (a) Subject to paragraph (b), the functions of a planning authority under the Act of 2000 shall, as respects—
(i) a decision under section 34 of that Act, or
(ii) a determination under section 37 of that Act,
made before the transfer day in relation to development or proposed development in the relevant area, be performable from that day by the city council.
(3) Any contribution—
(a) paid before the transfer day in accordance with section 49 of the Act of 2000 for the purpose of any public infrastructure service or project in the relevant area, and
(b) vested in the city council under Part 2,
shall be expended by the city council for that purpose.
(4) Any development contribution scheme under section 48 of the Act of 2000 or supplementary development contribution scheme under section 49 of that Act made by the city council shall, from the transfer day, apply to the relevant area as it applies to the rest of the functional area of the city council.
…
Editorial Notes:
E205
Making a development contribution scheme is a reserved function of local authorities as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 3 item 71 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 41(4) and sch. 3, S.I. No. 214 of 2014.
E206
Previous affecting provision: subs. (17)(c) amended (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 30, S.I. No. 477 of 2010; substituted as per F-note above.
Supplementary development contribution schemes.
49.—F457[(1) A planning authority may, when granting a permission under section 34, include conditions requiring the payment of a contribution in respect of any public infrastructure service or project—
(a) specified in a scheme made by the planning authority (in this section referred to as a “supplementary development contribution scheme”),
(b) provided or carried out or proposed to be provided or carried out—
(i) by a planning authority,
(ii) where the provision of the infrastructure concerned is an objective in the development plan of a planning authority, or of a planning scheme of the Dublin Docklands Development Authority under section 25 of the Dublin Docklands Development Act 1997, by a public authority, or, pursuant to an agreement entered into by a public authority with any other person, by that person, or
(iii) pursuant to an agreement entered into by a local authority with any other person, by that person,
and
(c) that will benefit the development to which the permission relates when carried out.
(1A) In this section, “public authority” means any body established by or under statute which is for the time being declared, by regulations made by the Minister, to be a public authority for the purposes of this section. ]
(2) (a) The amount, and manner of payment, of a contribution under subsection (1) shall be determined in accordance with a supplementary development contribution scheme.
(b) A supplementary development contribution scheme shall specify—
(i) the area or areas within the functional area of the planning authority, and
(ii) the public infrastructure project or service,
to which it relates, and more than one such scheme may be made in respect of a particular area.
(c) A supplementary development contribution scheme may make provision for the payment of different contributions in respect of different classes or descriptions of development.
(3) Subsections (3), (4), (5), (6), (7), (8), (9), (10), (11) and (15) of section 48 shall apply to a scheme subject to—
(a) the modification that references in those subsections to a scheme shall be construed as references to a supplementary development contribution scheme,
(b) any other necessary modifications, and
(c) the provisions of this section.
F458[(3A) Notwithstanding subsection (3) and section 48(10), the Board shall consider an appeal brought to it by an applicant for permission under section 34, in relation to a condition requiring the payment of a contribution in respect of a public infrastructure service or project specified in a supplementary development contribution scheme, where the applicant considers that the service or project will not benefit the development to which the permission relates and section 48(13) shall apply to such an appeal.]
F459[(3AA) Subsections (3A), (3B) and (3C) of section 48 shall apply where the basis for the determination of a contribution under subsection (1) has changed subject to—
(a) the modification that references in those subsections to a contribution shall be construed as references to a contribution to a supplementary development contribution scheme,
(b) any other necessary modifications, and
(c) the provisions of this section.]
(4) (a) A planning authority may enter into an agreement with any person in relation to the carrying out, or the provision, as may be appropriate, of a public infrastructure project or service.
(b) Without prejudice to the generality of paragraph (a), an agreement may make provision for—
(i) the manner in which the service or project is to be provided or carried out, as the case may be, including provision relating to construction or maintenance of any infrastructure or operation of any service or facility,
(ii) arrangements regarding the financing of the project or service and the manner in which contributions paid or owed to a planning authority pursuant to a condition under subsection (1) may be applied in respect of that project or service,
(iii) the entry into such further agreements as may be necessary with any other person regarding the financing and provision of such service or carrying out of such project,
(iv) the entry into force, duration and monitoring of the agreement (including the resolution of disputes).
(5) A planning authority shall not, pursuant to a condition under subsection (1), require the payment of a contribution in respect of a public infrastructure project or service where the person concerned has made a contribution under section 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constituted a part.
(6) A planning authority may, at any time, by resolution, amend a supplementary development contribution scheme for the purpose of modifying the manner of determining a contribution pursuant to a condition under subsection (1) where the cost of carrying out or providing, as the case may be, the public infrastructure project or service is less than the cost that was estimated when the planning authority first determined the amount of the contribution.
(7) In this section, “public infrastructure project or service” means—
(a) the provision of particular rail, light rail or other public transport infrastructure, including car parks and other ancillary development,
(b) the provision of particular new roads,
F460[(c) the provision of new surface water sewers and ancillary infrastructure,]
F457[(d) the provision of new schools and ancillary infrastructure. ]
Annotations
Amendments:
F457
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(a) and (c), S.I. No. 477 of 2010.
F458
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(b), S.I. No. 477 of 2010.
F459
Inserted (1.09.2015) by Urban Regeneration and Housing Act 2015 (33/2015), s. 30, S.I. No. 364 of 2015.
F460
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 28(3), S.I. No. 436 of 2018.
Modifications (not altering text):
C86
Certain functions transferred to Cork City Council as a result of the Cork City and Council areas boundary alteration (31.01.2019) by Local Government Act 2019 (1/2019), s. 31, S.I. No. 20 of 2019.
Planning applications and development contribution schemes
31. (1) For the purposes of the Act of 2000 or any instrument under that Act and subject to subsection (2), the county council shall, after the transfer day, be the planning authority in relation to any planning application made before the transfer day in respect of development or proposed development in the relevant area.
(2) (a) Subject to paragraph (b), the functions of a planning authority under the Act of 2000 shall, as respects—
(i) a decision under section 34 of that Act, or
(ii) a determination under section 37 of that Act,
made before the transfer day in relation to development or proposed development in the relevant area, be performable from that day by the city council.
(3) Any contribution—
(a) paid before the transfer day in accordance with section 49 of the Act of 2000 for the purpose of any public infrastructure service or project in the relevant area, and
(b) vested in the city council under Part 2,
shall be expended by the city council for that purpose.
(4) Any development contribution scheme under section 48 of the Act of 2000 or supplementary development contribution scheme under section 49 of that Act made by the city council shall, from the transfer day, apply to the relevant area as it applies to the rest of the functional area of the city council.
…
C87
Dublin Docklands Authority construed (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 7(2), commenced on enactment, S.I. No. 114 of 2016. The Council referred to is Dublin City Council (see s. 2).
Transfer of functions
7. (1) All functions that, immediately before the dissolution day, were vested in the Authority under subsections (1) (with the exception of functions vested under subparagraphs (i), (ii) and (iii) of paragraph (b)), (2), (3), (5) and (6) of section 18 of the Act of 1997 shall on that day stand transferred to the Council.
(2) References in any enactment (other than this Act) or instrument under an enactment to the Authority shall, to the extent that such references relate to a function transferred to the Council under this section, on and after the dissolution day, be construed as references to the Council.
Editorial Notes:
E207
Making or amending a supplementary development contribution scheme is a reserved function of local authorities as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 3 item 72 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 41(4) and sch. 3, S.I. No. 214 of 2014.
E208
Previous affecting provision: subs. (7)(c) substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(a) and (c), S.I. No. 477 of 2010; substituted as per F-note above.
E209
Previous affecting provision: subs. (7)(c) amended (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 11, commenced on enactment; substituted as per E-note above.
Cases
McDonagh & Sons Ltd. v. Galway Corporation
[1995] 1 I.R.191
Finlay C.J.
This is an appeal brought by the respondent against an order made by Blayney J. in the High Court on the 1st May, 1992, whereby in proceedings brought by the applicants for judicial review he granted to them the following declarations:
1. That the conditions 2 and 6 of the decision to grant planning permission to the applicants by the respondent on the 2nd August, 1991, and numbered 329/91 are conditions falling within the meaning of s. 26, sub-s. 2 (f) of the Local Government (Planning and Development) Act, 1963.
2. That upon the completion by the applicants, their servants, agents or assignees of the construction of five upper levels of a multistorey car park, to be constructed in the County Borough of Galway in accordance with the terms of a planning permission granted to the applicants by the respondent, consequent upon the said decision made on the 2nd August, 1991, and numbered 329/91 [recte 330/91], the respondent will be obliged to make such contribution to the applicants in respect of the said works as is decided in accordance with the provisions of s. 26, sub-s. 7 of the Local Government (Planning and Development) Act, 1963, as amended.
The facts
In 1991 the applicants were anxious to make a comprehensive redevelopment with a mixture of uses on a site, formerly McDonagh Chemicals worksite, which was facing onto a fishmarket along the river Corrib in Galway. The development consisted of a hotel with 126 bedrooms, with restaurant, function room and bars, together with retail units. The site on which this development was proposed was zoned in the development plan for the provision of a car park, and the applicants’ architect had been at all times informed that any development on the site would have to be designed in such a way that a car park could be provided on the site. In one application which was numbered 329/91, the applicants applied for permission to erect the hotel with bar, function room, restaurant and retail units, together with a three-storey car park with car parking spaces for 158 cars.
Simultaneously, they sought planning permission for a five-storey car park, in an application numbered 330/91, to be built on top of the three-storey car park the subject of the application 329/91. Submitting these two applications, their architect informed in writing the planning authority that they did not consider that the additional five-storey car park was a viable proposition at that time and that they would not intend to build it until such time as they were satisfied it was viable.
Both these planning applications were granted by the respondents on the 2nd August, 1991, but a number of conditions were attached to the grant of the application for the hotel (329/91) of which the following is relevant to the issues.
“No. 2. Before the hotel or any retail units are opened for business or before such later date as the Corporation may agree in writing, the developers shall commence and complete without undue delay construction of the upper floors of the multi-storey car park as provided for under Application PL Reg. Ref. No. 330/91, and shall within twelve months of commencement or such longer period as the Corporation may agree in writing, complete the said car park and make the entire eight-level car park available for use by customers and staff of the hotel and retail units and members of the public, subject to such charges, if any, that the developer or operator of the car park may make for the use of the said car park.”
The reason for this condition is stated to be as follows:
“The site the subject matter of planning applications PL Reg. Ref. Nos. 329/91 and 330/91, is designated in the 1991 Galway County Borough Development Plan for the provision of a public car park. Construction of a hotel and retail units on the site would not, therefore, be in accordance with the proper planning and development of the area or in accordance with the provisions of the development plan unless the hotel and retail units form part of an integrated development which ensures that the public car park (PL Reg. Ref. No. 330/91) for which the applicant seeks permission is constructed by the developer as part of and in conjunction with the hotel and retail complex.”
Upon the granting of the planning permission subject to the conditions and, in particular, to this condition, the applicants appealed to An Bord Pleanala against the imposition of this condition. They subsequently withdrew this appeal; it is asserted on their behalf because it could not be determined in sufficient time to permit them to complete the development of the hotel and other units so as to meet certain tax exemptions and benefits with a fixed time attached to them.
Counsel have informed us at the hearing of the appeal that in fact both the developments provided for in application 329/91 and application 330/91 are now complete and finished.
The statutory provisions involved
Section 26, sub-s. 2 (f) of the Act of 1963 provides as follows:
(2) Conditions under subsection (1) of this section may, without prejudice to the generality of that subsection, include all or any of the following conditions:
. . .
(f) conditions for requiring roads, open spaces, car parks, sewers, water-mains or drains in excess of the immediate needs of the proposed development . . .”
Section 26, sub-s. 7 of the Act of 1963 provides as follows:
“In a case in which a condition referred to in paragraph (f) of subsection (2) of this section is attached to any permission or approval granted under this section, a contribution towards such of the relevant roads, open spaces, car parks, sewers, watermains or drains as are constructed shall be made by the local authority who will be responsible for their maintenance, and the contribution shall be such as may be agreed upon between that local authority and the person carrying out the works or, in default of agreement, as may be determined by the Minister.”
Section 26 of the Act of 1963 provides power to the Minister by regulations, to be referred to as permission regulations, to provide for the grant of permission for the development of land, and for the matters that must be dealt with in applications therefor. Applications under these regulations include a requirement that the owner of the lands be stated.
The issues arising on this appeal
Three issues arose on the hearing of this appeal which are the same three issues as arose and were determined by Blayney J. in the High Court, and they are as follows:
1. Does condition No. 2 of Planning Permission No. 329/91 for a hotel and retail complex require car parks in excess of the immediate needs of the proposed development within the meaning of s. 26, sub-s. 2 (f)?
2. If the said condition No. 2 is within the provisions of s. 26, sub-s. 2 (f) is the respondent liable, pursuant to the provisions of s. 26, sub-s. 7, to make contribution to the applicants to the five-storey car park constructed by them pursuant to Planning Permission No. 330/91?
3. If the respondent would, pursuant to the provisions of s. 26, sub-s. 7 of the Act, be liable to make contribution, are the applicants disentitled to such contribution by reason of the fact that in their applications for planning permission the owner of the land was stated to be the first applicant whereas in fact, it appears that the owner in fee simple of the site is the second applicant, an associate company.
The decision in the High Court
Blayney J. in the course of his judgment in the High Court on these three issues came to the following conclusions.
No. 1
On this issue he was satisfied of the following matters.
(a) That approximately 156 or 158 car parking spaces would have been sufficient for the proposed development of the hotel and related units, and accordingly, that the additional 246 car parking spaces, in five storeys, to be erected above the three-storey park, pursuant to Application No. 330/91 were in excess of the immediate needs of the proposed development relating to the hotel.
(b) That the applicants through their architect made very clear in a letter that the upper storeys or additional public car parking would not be constructed until it was considered a viable proposition.
(c) That the respondent was well aware that there would have been no obligation on the applicants to go ahead with the application for the development 330/91 in respect of the five-storey car park, because the mere application for and grant of a planning permission does not impose any duty on the person who receives the planning permission to carry out the works which is the subject of it.
(d) That the respondent accordingly inserted Condition No. 2 in the permission on the application 329/91, and that was in his view a condition requiring car parks in excess of the immediate needs of the proposed development.
No. 2
The learned trial judge concluded that, whereas he accepted that the respondent will not be responsible for the maintenance of this five-storey car park, the real and main purpose of sub-s. 7 of s. 26 was to ensure that a developer required to provide any of the works referred to in s. 26, sub-s. 2 (f) in excess of the immediate needs of the development would be paid a contribution by some local authority, and accordingly, he construed the phrase “the local authority who will be responsible for their maintenance”as meaning and being equivalent to saying that the contribution should be made by the local authority most closely connected with the works, being the local authority which would benefit from those works, and that in the case where no local authority would be responsible for the maintenance of the works, that would be the local authority in whose functional area the works were erected, and in this case the respondent.
No. 3
The learned trial judge having reached the conclusions above set out, concluded that it would not be a proper exercise of his discretion to refuse to the applicants the remedies which they were seeking by reason of the mistake which had occurred in the original application for planning permission, indicating the first applicant as owner of the land instead of the associated company, the second applicant. He concluded that what was involved would not have had any consequence whatsoever; that the two companies were closely interlinked and that nobody could in any way have been misled because of the application being put in by one rather than the other, and that he was quite satisfied there was no intention to mislead.
The decision
Issue No. 1
I agree with the conclusion reached by the learned trial judge on this issue. It was contended on behalf of the respondent that, since the applicants had sought a specific permission to build a five-storey car park over and above the three storey car park which was associated with the application to build the hotel, the respondent was entitled to treat the two planning applications as being in effect a single one and that the applicants were in the position of having voluntarily sought permission to build a five-storey car park, and that having done so they could not be said to have been required by a condition to construct the car park even though it was agreed that it was in excess of the immediate needs of the development consisting of the hotel. I am satisfied that this submission must fail. It is quite clear, and was made quite clear to the respondent when the two applications for planning permission were lodged, that it was not the intention to build the five-storey public car park in conjunction with or contemporaneously with the hotel, the three-storey car park and the other units.
In my view, the learned trial judge was quite correct in concluding that such a situation was clear to the respondent and that the way which it achieved what was for it an important requirement for excess car parking facilities was by imposing Condition No. 2. The reasons set out for the imposition of Condition No. 2 makes this, in my view, very clear indeed.
In so far, therefore, as the respondent has appealed against this finding, I would dismiss its appeal.
Issue No. 2
In essence, as I have indicated, the decision of the learned trial judge in the High Court concerning this matter was to the effect that the purpose and intention of s. 26, sub-s. 7 was to ensure that in every case where a developer was required by the planning authority to provide any of the works outlined in s. 26, sub-s. 2 (f), that is to say, roads, open spaces, car parks, sewers, water-mains or drains in excess of the immediate needs of the proposed development, such developer will be given a contribution from some local authority. Assuming that to be the intent and object of the sub-section, the learned trial judge then concluded that the identification of the local authority concerned as the local authority “who will be responsible for their maintenance” was the equivalent of saying the local authority most closely associated and therefore most likely to gain advantage from the construction of such excess works.
He pointed out in the course of his judgment that such an interpretation would be consonant with the justice of the situation and that to decide otherwise would be to create two types of works which would come within s. 26, sub-s. 2 (f) as being in excess of the immediate needs of the development, one of which, being works which the local authority would be responsible to maintain, would attract a contribution, and the other of which, being works equally in excess of the immediate needs of the development, but for which no local authority would have any responsibility for maintenance, would not attract a contribution. It is urged by the applicants that such a result would be wholly unjust and illogical for, if anything, works created in excess of the immediate needs of the development for which no local authority has any responsibility for maintenance are a much greater burden on the developer than would be works in excess of the immediate needs but for which a local authority has got responsibility for maintenance.
It is urged by the respondent, on the other hand, that there is logic in such a distinction in that it is submitted that “excess works” for which a local authority has responsibility for maintenance are almost certainly works which have been taken over by a local authority and, by that taking over, no longer could form part of the property of the developer from which such developer could gain a profit. In the case, on the other hand, it is said of “excess works” for which no local authority has any responsibility for maintenance that is almost certainly because they have remained (as does the car parking on the five storeys in this case) in the ownership and occupation of the developer. In such a case a developer, it is urged, can derive a profit which is a good substitute for the contribution which would arise in the other case and which would, in addition, indemnify him against the cost of maintenance.
At the hearing in the High Court counsel on behalf of the applicants urged as a possible construction of s. 26, sub-s. 7 that it did two things: first, imposed on an appropriate local authority an obligation to make a contribution to the developer in respect of these “excess works”, and secondly, that it actually imposed on such local authority who was liable to make the contribution a responsibility in the future to maintain such works. The learned trial judge in the High Court rejected this and it was repeated again on the hearing of this appeal, but I must reject it also. It seems to me inconceivable that this sub-section of the Act could be construed as actually imposing upon a local authority an obligation, not otherwise arising, to be responsible for the maintenance of such excess works by these words. In the instant case it would seem to be most unlikely that five storeys of a car park situated exclusively on the property of the developer and under his undoubted control and ownership would in respect of maintenance become the responsibility of the local authority, merely by the inclusion of the words”who will be responsible for its maintenance” in the sub-section.
I am satisfied that neither of the other two possible alternative constructions of this subsection is wholly satisfactory. To construe the sub-section so as to provide that in every case of the construction of excess works within the meaning of s. 26, sub-s. 2 (f) there will be a contribution, seems necessarily to construe it as if the words contained in it were: “who will be responsible for their maintenance, and in the event of no local authority being responsible for their maintenance, is the local authority who derives advantage from and is most closely associated with the said works”. The very fact that these are the necessary words unambiguously to impose an obligation in this case on the respondent to contribute to this extra car parking facility would seem to me, quite clearly, to put it as an interpretation into the category of legislation rather than construction. On the other hand, the interpretation of this sub-section as confining contribution to cases where a local authority is responsible for maintenance, does not appear to yield a satisfactorily just result. In the present case there is much strength, in my view, in the contention that having regard to the fact that what is involved is car parking facility which can be, and usually is, a commercial undertaking capable of yielding a profit, such a restriction would appear potentially justifiable. In the case of sewers, watermains or drains, they will ordinarily be taken over, as will most roads, by a local authority, and therefore, be the subject matter of contribution if in excess of the immediate needs of the development. But with regard to open spaces, there would appear to be a significant case that in the application of this construction of s. 26, sub-s. 7 to those as works in excess of immediate needs of the development, that a developer could be left with something from which no profit could be derived, for which he would get no help in maintenance, and in respect of which he would have got no contribution.
Having regard, however, to the prohibition of the insertion of words or phrases into a statutory provision so as to interpret it, and having regard to the most probable ordinary meaning of the words contained in s. 26, sub-s. 7, I have come to the conclusion that the learned trial judge erred in holding that it can be construed as a section which provided an obligation on some local authority to make contribution for excess works, even where no local authority will be responsible for their maintenance.
It is possible that a condition imposed under s. 26, sub-s. 2 (f) which required a developer to construct works in excess of the immediate needs of the development in respect of which he could neither derive a profit from his ownership or occupation of them, nor impose a responsibility for their maintenance upon a local authority and therefore obtain a contribution for them, would be an unjust condition and one which could be set aside either on appeal to An Bord Pleanala, or if its injustice was an invasion of the constitutional right to protection of property rights, by judicial review. Such a course, however, is not open in this case and no question concerning it can arise.
I am, therefore, satisfied that the appeal against the declaration made in favour of the developers at No. 2 in the order of the High Court should be allowed and that the order should be varied accordingly.
Issue No. 3
Having regard to the view which I have taken concerning issue No. 2 in this case, it is not necessary from me to decide issue No. 3. The matter was, however, fully argued in the High Court and there is a relatively lengthy portion of the judgment of the learned trial judge in the High Court dealing with it giving his reasons for rejecting it as a ground for withholding his discretion to grant declarations, and I feel that I should express a view on it.
I am quite satisfied that in this particular case, whilst compliance with regulations concerning applications for planning permission is important, and in many cases may be fundamental, that a misstatement, which was not intentional, which did not have the effect of misleading anyone and which could not possibly have been in any way to the disadvantage either of the planning authority or of the public who would have a right to object, could not possibly have prevented these applicants from obtaining the declarations if otherwise they were entitled to them. I would, therefore, allow the appeal and vary the order made in the High Court to the extent to which I have indicated in this judgment.
Hederman J.
I agree.
O’Flaherty J.
I agree.
Egan J.
I agree.
Denham J.
I also agree.
Boland v An Bord Pleanala
[1996] 3 I.R.435
Raymond Boland Applicant v. An Bord Pleanala Respondent ; The Minister for the Marine and Others, Notice Parties
[1994 No. 352 J.R.; S.C. No. 131 of 1995]
High Court 9th December 1994
21st March 1996
[1996]
3 I.R. Boland v. An Bord Pleanala
Keane J. 439
H.C.
Keane J.
9th December 1994
On the 20th July last, the respondent (hereafter “the Board”) decided to grant permission to the first notice party (hereafter “the Minister”) for a development consisting of the extension and refurbishment of the existing ferry terminal at St. Michael’s Wharf, Dun Laoghaire Harbour, intended to accommodate a new high speed ferry service as well as the existing ferry services.
The proposed development envisages the reclamation from the sea of approximately 1.5 hectares to the west of the existing pier, the renewal and extension of traffic marshalling areas to a total of 3.2 hectares, the construction of a new two storey terminal building and the refurbishing of the existing two storey St. Michael’s terminal building.
The permission granted was subject to a number of conditions, five of which are material to the present application. The conditions in question, and the reasons given by the Board for their imposition, are as follows:
“2. Revised details of the disembarkation vehicle standage area and methods of control of throughput of vehicles, so as to regulate traffic movements on Harbour Road, shall be submitted to and agreed with the planning authority. To this end, the details shall include proposals to provide for merging of the initial six lanes to the final exit from the standage area on to Harbour Road.
Reason:
To ensure orderly traffic management in the interest of traffic safety and to avoid traffic congestion.
3. (The Minister) shall pay a sum of money to Dun Laoghaire Rathdown County Council as a contribution towards the expenditure that is proposed to be incurred by the Council in respect of works (comprising the provision of a modified signal controller and ancillary works at the Coal Quay Bridge junction) facilitating the proposed development. The amount of the contribution and the arrangements for payment shall be as agreed between (the Minister) and the Council or, in default of agreement, shall be determined by (the Board).
Payment of this contribution is subject to the provisions of s. 26, sub-s. 2 (h) of the Local Government (Planning and Development) Act, 1963, generally, and in particular, the specified period for the purposes of para. (h) shall be the period of seven years from the date of this order.
Reason:
It is considered reasonable that (the Minister) should contribute towards the expenditure proposed to be incurred by the Council in respect of works facilitating the proposed development.
4. Arrangements shall be agreed between (the Minister) and the planning authority to monitor the capacity and operations of the Coal Quay Bridge and junction and the approach areas to the bridge, following initiation of the new car ferry service (HSS). (The Minister) shall make a contribution to Dun Laoghaire Rathdown County Council towards any additional works considered necessary to facilitate the new traffic flows at this location. In the absence of agreement between (the Minister) and the planning authority, the amount of this contribution shall be determined by the Board.
Reason:
To ensure that adequate traffic arrangements are in place to cater for the operational traffic flows generated by the proposed development in the interest of road safety and convenience of the public.
5. (a) (The Minister) shall provide for –
(i) a redesign of the exit from the disembarkation standage area, so as to exclude heavy goods vehicles from turning left towards the Royal Marine Road junction, and
(ii) revised proposals for off road heavy goods vehicles embarkation queue, so as to ensure queueing does not tail back on to Harbour Road.
(b) (The Minister) shall provide for a redesign of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza, so as to provide for –
(i) suitable access from the proposed bus layby to the round-about;
(ii) adequate turning radii to provide for feed to the junction of Royal Marine Road and Queen’s Road;
(iii) a more orderly access from the area in front of the Royal St. George Yacht Club (that is between the yacht club and Queen’s Road) into the roundabout and to provide a through route from the Carlisle Pier to Harbour Road;
(iv) improved separation between the car park (beneath the public plaza) exit and the bus bay exit;
(v) suitable access and egress to the area to the rear of the Royal St. George Yacht Club for cranes and boats;
(vi) proper access aisles for the nose-on car parking adjoining the side of the Royal St. George Yacht Club;
(vii) adequate turning circle for buses;
(viii) improved safety and visibility at the proposed pedestrian crossing.
(c) Detailed drawings showing the requirements of (a) and (b) above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason:
In the interest of orderly development and traffic safety.
6. The pavement treatment of the proposed pedestrian link to the DART station where it lies within the ownership and control of (the Minister) shall be upgraded by means of paving, signage, safety barriers and, as necessary, pavement separation and other landscaping measures as may be required to reinforce clear and strong pedestrian links to the adjoining urban centre, set-down areas and car parks, so as to maximise pedestrian safety and reduce pedestrian/vehicular conflicts to a minimum. Detailed drawings showing proposals to achieve the above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason:
In the interest of pedestrian safety and orderly development.”
The applicant seeks an order of certiorari by way of judicial review of the decision of the Board to grant the permission. In substance, the case made on his behalf is that the imposition by the Board of the conditions in question which leave a number of matters relating to traffic to be agreed between the Minister and the planning authority, constitutes an abdication by the Board of its responsibility to determine the matter and is, in the result, ultra vires the powers of the Board under the Local Government (Planning and Development) Acts, 1963 to 1993.
The applicant is a resident of Dun Laoghaire and is concerned by what he says will be the traffic congestion, pollution and general destruction of the environment of Dun Laoghaire that will result from an increase in cars, buses and, more particularly, heavy goods vehicles arriving at the proposed new ferry terminal. He says that the single most important planning issue in relation to the proposed development concerned traffic, as is clear from the amount of space devoted to the topic in the submission presented on behalf of the Minister to the Board and in the Environmental Impact Statement also prepared on behalf of the Minister.
Two preliminary points should be noted at this stage. First, the Board and the Minister having been given notice of the intention of the applicant to apply for judicial review in respect of the decision of the Board, the Board and the Minister accepted that the matter was being properly brought before the Court and, accordingly, leave was not applied for in accordance with the usual practice. Secondly, it was accepted that, by virtue of s. 4 of the Local Government (Planning and Development) Act, 1993, and s. 2 of the Dun Laoghaire Harbour Act, 1994, the Minister was not required to obtain permission under the Local Government (Planning and Development) Act, 1963, for the development. The Minister, however, having voluntarily submitted to the planning process, did not rely on this in any way in resisting the applicant’s claim.
It is obvious that the proposed development has aroused much controversy and that there is a sharp divergence of view between the applicant and other residents of Dun Laoghaire on the one hand and the Minister and his advisers on the other. It is, however, accepted by the parties to the present application that this Court is not concerned in any way with the advantages or disadvantages of the proposed development in planning and environmental terms: they are exclusively matters for determination by the planning authority in the first instance and the Board on appeal. I am solely concerned with whether the imposition of the conditions in question was a lawful exercise by the Board of its powers under the relevant legislation.
Section 26, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, (hereafter “the Act of 1963”) provides that where application is made to a planning authority for permission for development of land,
“. . . the authority may decide to grant the permission or approval subject to or without conditions or to refuse it . . .”
The sub-section goes on to provide that, in dealing with any such application, the authority is to be restricted to considering the proper planning and development of the area (including the preservation and improvement of its amenities), while having regard to the provisions of the development plan and
“the matters referred to in subsection (2) of this section.”
That sub-section authorises, “without prejudice to the generality of [sub-section (1)]”, the imposition of specified conditions. The following are material to this application:
“(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission,
(b) conditions for requiring the carrying out of works (including the provision of car parks) which the planning authority consider are required for the purposes of the development authorised by the permission,
. . .
(e) conditions for requiring the giving of security for satisfactory completion of the proposed development (including maintenance until taken in charge by the local authority concerned of roads, open spaces, car parks, sewers, watermains or drains),
(f) conditions for requiring roads, open spaces, car parks, sewers, watermains or drains in excess of the immediate needs of the proposed development,
(g) conditions for requiring contribution (either in one sum or by instalments) towards any expenditure (including expenditure on the acquisition of land and expenditure consisting of a payment under sub-section (7) of this section) that was incurred by any local authority in respect of works (including the provision of open spaces) which have facilitated the proposed development . . .,
(h) conditions for requiring contribution (either in one sum or by instalments) towards any expenditure (including expenditure on the acquisition of land) that is proposed to be incurred by any local authority in respect of works (including the provision of open spaces) facilitating the proposed development . . .”
There are also provisions in sub-para. (h) as to the return of contributions in the event of the proposed works not being carried out.
Sub-section 7, as originally enacted, provided that where a condition was imposed under sub-para. (f) above a contribution was to be made to the roads, open spaces, etc., in question by the local authority who would be responsible for their maintenance. The contribution was such as might be agreed between that local authority and the developer and, in default of agreement, was to be determined by the Minister for Local Government, as he or she was then styled. Section 14, sub-s. 3 of the Local Government (Planning and Development) Act, 1976 (hereafter “the Act of 1976”), under which the Board was established, provided that, in default of agreement, the matter was to be determined by the Board.
Section 14, sub-s. 4 of the Act of 1976 is also relevant. It provides that:
“In case there is attached to a permission or approval granted under section 26 of the Principal Act a condition which provides that a contribution or other matter is to be agreed between the planning authority and the person to whom the permission or approval is granted and that in default of agreement the contribution or other matter is to be determined by the Minister, the condition shall be construed as providing that in default of agreement the contribution or other matter is to be determined by the Board.”
Mr. Smyth on behalf of the applicant submitted that, while the legislation undoubtedly envisaged that the planning authority or the Board could impose conditions requiring certain matters, such as the amount of a contribution to services, to be determined by agreement by the planning authority and the developer or, in default of agreement, by the Board, it did not contemplate the abdication by either the planning authority or the Board of their decision making powers in relation to a central issue. In the case of the present application, the central issue for resolution by the Board was the significant increase in traffic, including the greatly increased volume of heavy goods traffic, which would unarguably be generated by the proposed development. He urged that the Board could not dispose of this crucial issue by leaving so many of the relevant problems which arose to be resolved by agreement between the Minister and the planning authority without interested parties being afforded any opportunity to be heard.
In support of these submissions, Mr. Smyth relied on some observations of McMahon J. in Keleghan and Others v. Corby and Dublin Corporation (1976) 111 I.L.T.R. 144. In that case, the planning authority had granted a permission subject, inter alia, to a condition that details of a new access road were to be “resubmitted for agreement”. It was held that permission in that case had been unlawfully granted by the planning authority, since the notice published in purported compliance with the regulations was inadequate. It was also argued, however, that the permission was invalid because of the condition in question. McMahon J. said at p. 145:
“I think it better to reserve any decision on the third point made by Mr. Gaffney, namely assuming that the application had in fact been, as it was construed by the planning authority, to include access or change of user of the land to provide access from the cul-de-sac.Whether the permission has been validly granted by imposing a condition that details of the access be submitted for agreement, I can see serious difficulties about that from the point of view of the planning law. A planning authority is entitled to grant permission, subject to conditions requiring work to be done, but when that is done the planning permission must specify the work to be done and any person, who thinks he is prejudiced by it, can appeal because he has before him details of the work to be done, but in this case what was granted was permission for access subject to details to be submitted for agreement. The public would have no knowledge what details were in fact being agreed and no way of appealing against the details agreed on between the applicants and the planning authority.”
While conceding that these observations were clearly obiter, Mr. Smyth submitted that they correctly stated the law. He also relied on some remarks in the Report of the Tribunal of Inquiry on the Fire at the Stardust, Artane, Dublin, on the 14th February, 1981, of which I was the sole member. The permission for the building destroyed by the fire had included a condition that, before commencement of the development, the applicant should consult with the Chief Fire Officer and should ascertain and comply with his requirements (if any) in regard to the prevention of a fire hazard in the development. I commented at para. 1.129 that:
“Doubts as to the validity of conditions of this general nature have been expressed obiter in at least one High Court decision (see the observations of McMahon J. in Keleghan and Others v. Dublin Corporation and Hilary Mary Corby (1976) 111 I.L.T.R. 144); and the Tribunal is satisfied that the requirement imposed in the present case was probably not valid. Clearly, however, the validity of conditions of this general nature can only be determined definitively by a judgment of the Superior Courts. It should also be pointed out that neither the applicant nor those acting for him ever sought to question the validity of the condition until after the fire.”
Mr. Smyth also relied on the decision of Murphy J. in Houlihan v. An Bord Pleanala (Unreported, High Court, Murphy J., 4th October, 1993). In that case permission had been granted by the Board for a development consisting of the building of twenty-two holiday homes at Ballyferriter, County Kerry. A number of the conditions imposed by the Board provided for the agreement of various matters between the developer and the planning authority. Having observed that “the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree”, Murphy J. added that he would have little difficulty in concluding that the Board was justified in stipulating that some technical matters could be left to the planning authority and the developer to reach agreement on without invalidating the decision. However, the learned judge took the view that different considerations applied to the routing of an effluent discharge main, in respect of which the relevant condition provided that:
“The effluent discharge main shall be re-routed in an easterly direction in a manner to be agreed with the planning authority . . .”
He pointed out that the possible impact of the effluent discharge main on visual amenity was a matter of particular importance in that case. It would run over rocks along the shore for a distance of forty-five metres and could be clearly seen from the beach. In those circumstances, Murphy J. found that it was insufficient for the Board to require that the main should be re-routed in an easterly direction in a manner to be agreed with the planning authority. He commented that he would have had no difficulty in upholding the condition if it had prescribed that the main should be re-routed along a wide but defined pathway on a particular line to be selected by the developer with the approval of the planning authority. He concluded that:
“It does not seem to me that a discretion or tolerance would invalidate a permission but to give, as has been done in the present case, a power by way of delegation from [the Board] to approve all or any route for the effluent discharge main provided only that it is in an easterly direction seems to me to constitute an improper abdication by the Board of its responsibilities in the particular circumstances of this case.”
However, so far as a condition calling for the resiting of one of the boundaries was concerned, the learned judge remarked that:
“. . . I do not doubt [the Board’s] right to delegate to the planning authority power to agree with the developer the revisions of the layout which would be consequent upon the re-siting of the boundary.”
Mr. Smyth submitted that the conditions in the present case exceeded the limits of discretion identified by Murphy J. in Houlihan.
Mr. Collins on behalf of the Board submitted that s. 14, sub-s. 4 of the Act of 1976 clearly envisaged the imposition of conditions which allowed matters to be agreed between the planning authority and the developer or, in default of such agreement, to be determined by the Board. He said that the sub-section was clearly not confined to agreement on contributions and specifically referred to “other matter”. Mr. Collins accepted that, as held by Murphy J. in Houlihan, this did not permit the planning authority or the Board to abdicate their decision making powers completely and that it was a question of degree as to whether they had so abdicated them in any particular case. He argued that four tests could be invoked in any case in order to determine whether the conditions properly left matters to be agreed between the developer and the planning authority i.e.,
(1) Are the matters the subject of the delegation essentially concerned with problems which are off-site and do not affect the subject lands?
(2) Does the effective enforcement of the conditions require monitoring or supervision?
(3) Is it reasonable to suppose that aspects of the proposed development may require redesign in the light of practical experience?
(4) In leaving matters to be agreed between the planning authority and the developer, has the Board laid down criteria by which the authority and the developer can reach agreement?
In relation to the first test, Mr. Collins pointed out that under s. 26 of the Act of 1963, it was clear that the Board was both entitled to and obliged to take into account the effect of the proposed development on other lands. In the present case, a number of conditions to which exception was taken related to areas outside the site of the proposed development. The Board had no enforcement role in relation to those areas and had no power to control their use or development. It was accordingly essential that some mechanism should be provided for ensuring that the traffic flows in the area were appropriately monitored and the necessary controls put in place. It was not the function of the Board to monitor and control the traffic on a continuing basis: that was the role of the planning authority and hence these matters were properly left for agreement between the Minister and the authority.
In regard to the second test, Mr. Collins also submitted that the Board had no statutory power to engage in continuous monitoring and supervision of a development where, as here, such monitoring and supervision was required. Again, this could only be achieved by conditions of the nature under challenge.
As to the third test, Mr. Collins said that if, in a particular case, it was evident that aspects of a development might require redesign in the light of experience – and this was obviously such a case – then there had to be some mechanism for achieving this.
As to the fourth test, Mr. Collins accepted that, if there were simply no criteria laid down to guide the Minister and the authority in reaching agreement on the matters in question, that might well be impermissible. If, however, it appeared that the Board had in effect “ring fenced” the area which was to be the subject of agreement, then that was clearly permissible and envisaged by the Act of 1963. In the present case, he submitted, the detail given in the disputed conditions was such as to make the criteria by which agreement was to be reached abundantly clear. He said that matters such as the frequency with which traffic lights should change, the actual design of the roundabout, the size and shape of notice boards etc.,were essentially matters for the planning authority to regulate by agreement with the Minister and could not conceivably be the subject of detailed conditions.
Mr. O’Sullivan, on behalf of the Minister adopted the submissions of Mr. Collins. He further submitted that matters the subject of conditions in the present case were peculiarly within the province of either the planning authority in its statutory capacity as a road authority or of the National Roads Authority established under the Roads Act, 1993.
Mr. O’Sullivan also submitted that the conditions set out in the Fourth Schedule to the Local Government (Planning and Development) Act, 1990, which could be imposed without giving rise to a claim for compensation, included many conditions related to traffic. It was clearly envisaged that permissions granted under the Act of 1963 would include conditions such as those in the present case and that the only practical mechanism available to the Board to ensure that such conditions were appropriate and effective was a provision for their being agreed between the Minister and the planning authority.
Mr. Smyth in reply said that the “other matter” referred to in s. 14, sub-s. 4 of the Act of 1976 was clearly intended to apply to relatively minor and insignificant details other than contributions. While he did not disagee with the criteria suggested by Mr. Collins, for determining whether it was appropriate for the Board to impose conditions of this nature, the question remained as to whether the Board was within its statutory powers in leaving so wide a range of matters undetermined. He said that it was clearly not within the powers of the Board to leave matters so vital as the traffic problems to be worked out in practice on a “trial and error” basis. The rights of the public which the Board was there to protect would not be safeguarded by the uncertainty evident in these conditions.
Having carefully considered these arguments and the enactments and authorities referred to, I have come to the following conclusions. While the observations of McMahon J. in Keleghan and Others v. Corby and Dublin Corporation (1976) 111 I.L.T.R. 144 were obiter and ex tempore,they are undoubtedly of assistance in identifying the legal problems to which conditions of this nature may give rise. At the same time, they cannot be regarded as a binding authority for the proposition that such conditions are, by their nature, unlawful. That such conditions are not necessarily unlawful is made abundantly clear by s. 14, sub-s. 4 of the Act of 1976 which expressly envisages the imposition of such conditions. I would respectfully adopt the view of Murphy J. in Houlihan v. An Bord Pleanala (Unreported, High Court, Murphy J., 4th October, 1993) that the question as to whether the imposition of conditions of this nature constitutes an improper abdication by the Board of its statutory role is essentially a matter of degree which must be resolved having regard to the circumstances of the particular case.
It is noteworthy that in Houlihan the condition which Murphy J. found impermissible left a crucial matter affecting visual amenity to be resolved by the planning authority and the developer without any guidance from the Board, although the siting of the effluent pipe in question had been a matter of controversy. It does not appear to have been suggested in that case that there was any inherent difficulty in the Board’s imposing a condition requiring the main in question to be within the limits of a specified route. In the present case, by contrast, the matters which are left to be agreed between the Minister and the planning authority are, of their nature, such as to render the imposition of detailed conditions impractical.
In this connection, the statutory role of the Board must be borne in mind. In a sense, it is functus officio when it gives a decision on appeal. It has no further role in the policing of the permission which it has granted nor has it any day-to-day responsibility for the enforcement of the Local Government (Planning and Development) Acts, 1963 to 1993, in the area of the planning authority. That is the function of the planning authority who also, in their capacity as roads authority, have continuing responsibilities in relation to traffic in their area which are not within the province of the Board. The only role of any significance envisaged by the legislature for the Board in the aftermath of the granting of permission is precisely the resolution of matters which it has left for agreement between the developer and the planning authority.
Taking all those factors into account, it cannot fairly be said that the imposition of conditions of this nature constituted an abdication by the Board of its statutory duties.
I note, in this context, that a condition in a permission granted by the Board which provided that:
“The foul and surface water drainage systems and water supply to serve the proposed development shall comply with the detailed requirements of the planning authority”
was considered by Finlay P. (as he then was) in The State (Foxrock Construction Co. Ltd.) v. Dublin County Council (Unreported, High Court, Finlay P., 5th February, 1980). While the validity of the condition was not directly in issue in that case, it is noteworthy that it attracted no unfavourable comment from the learned judge.
It is undoubtedly the case, as pointed out by Willmer L.J. in Mixnam Properties Ltd v. Chertsey Urban District Council [1964] 1 Q.B. 214, that a condition subject to which a permission is granted may be held void for uncertainty, and consequently unenforceable, if it is ambiguous or uncertain in its application. However, it should be observed that the reason he considered it important that conditions should be unambiguous and free from uncertainty was that, in the event of non-compliance with the conditions, penal consequences might follow. I am satisfied that in the present case the conditions are not to any significant extent uncertain or ambiguous: were the Minister to bring the development to completion and thereafter implement the permission without securing the approval of the planning authority, or in the event of disagreement the Board, to the matters specified in the conditions, he would be liable in the ordinary way to the penalties provided by the Acts for non-compliance. (I am assuming, of course, that the Minister would maintain his policy in regard to this development of not availing of the freedom from planning control afforded to him by the sections to which I have referred).
For the reasons given, I am satisfied that the application for certiorariby way of judicial review in respect of the grant of permission by the Board must be refused.
Supreme Court
Hamilton C.J.
21st March 1996
This is an appeal brought by the applicant pursuant to an order of the High Court made on the 20th December, 1994, whereby the said Court did grant pursuant to s. 82 of the Local Government (Planning and Development) Act, 1963, as amended by s. 19, sub-s. 3 of the Local Government (Planning and Development) Act, 1992, leave to the applicant to appeal to the Supreme Court against the decision made by the High Court and the High Court certified that the said decision involved a point of law of exceptional public importance as set out in the second schedule to the said order and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.
The point of law as set out in the second schedule to the said order was:
“What are the criteria which distinguish those matters which may properly be left to the developer and the planning authority to agree upon, and those matters which cannot be left to such parties in such fashion and must instead be decided by An Bord Pleanala itself under the provisions of the Local Government (Planning and Development) Acts, 1963 – 1992, and has An Bord Pleanala applied such criteria to the instant case?”
In the High Court, the applicant herein had sought an order of certiorariquashing the decision of An Bord Pleanala (hereinafter referred to as the Board) made on the 20th July, 1994, granting permission to the first notice party (hereinafter referred to as “the Minister”) for a development consisting of the extension and refurbishment of the existing ferry terminal at St. Michael’s Wharf, Dun Laoghaire Harbour, which was intended to accommodate a new high speed ferry service as well as the existing ferry services in the said harbour.
As appears from the judgment of the learned trial judge:
“The proposed development envisages the reclamation from the sea of approximately 1.5 hectares to the west of the existing pier, the renewal and extension of traffic marshalling areas to a total of 3.2 hectares, the construction of a new two storey terminal building and the refurbishing of the existing two storey St. Michael’s terminal building.”
The permission granted was subject to a number of conditions, five of which were material to the application. The conditions in question, and the reasons given by the Board for their imposition, were as follows:
“(2) Revised details of the disembarkation vehicle standage area and methods of control of throughput of vehicles, so as to regulate traffic movements on Harbour Road, shall be submitted to and agreed with the planning authority. To this end, the details shall include proposals to provide for merging of the initial six lanes to the final exit from the standage area on to Harbour Road.
Reason
To ensure orderly traffic management in the interest of traffic safety and to avoid traffic congestion.
(3) (The Minister) shall pay a sum of money to Dun Laoghaire Rathdown County Council as a contribution towards the expenditure that is proposed to be incurred by the Council in respect of works (comprising the provision of a modified signal controller and ancillary works at the Coal Quay Bridge junction) facilitating the proposed development. The amount of the contribution and the arrangements for payment shall be agreed between (the Minister) and the Council or, in default of agreement, shall be determined by (the Board).
Payment of this contribution is subject to the provisions of s. 26, sub-s. 2 (h) of the Local Government (Planning and Development) Act, 1963, generally, and in particular, the specified period for the purposes of para. (h) shall be the period of seven years from the date of this order.
Reason
It is considered reasonable that (the Minister) should contribute towards the expenditure proposed to be incurred by the Council in respect of works facilitating the proposed development.
(4) Arrangements shall be agreed between (the Minister) and the planning authority to monitor the capacity and operations of the Coal Quay bridge and junction and the approach areas to the bridge, following initiation of the new car ferry service (HSS). (The Minister) shall make a contribution to Dun Laoghaire/Rathdown County Council towards any additional works considered necessary to facilitate the new traffic flows at this location. In the absence of agreement between (the Minister) and the planning authority, the amount of this contribution shall be determined by the Board.
Reason:
To ensure that adequate traffic arrangements are in place to cater for the operational traffic flows generated by the proposed development in the interest of road safety and convenience of the public.
(5) (a) (The Minister) shall provide for –
(i) a redesign of the exit from the disembarkation standage area, so as to exclude heavy goods vehicles from turning left towards the Royal Marine Road junction, and
(ii) revised proposals for off road heavy goods vehicles embarkation queue, so as to ensure queueing does not tail back on to Harbour Road.
(b) (The Minister) shall provide for a redesign of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza, so as to provide for –
(i) suitable access from the proposed bus layby to the round-about;
(ii) adequate turning radii to provide for feed to the junction of Royal Marine Road and Queen’s Road;
(iii) a more orderly access from the area in front of the Royal St. George Yacht Club (that is between the yacht club and Queen’s Road) into the roundabout and to provide a through route from the Carlisle Pier to Harbour Road;
(iv) improved separation between the car park (beneath the public plaza) exit and the bus bay exit;
(v) suitable access and egress to the area to the rear of the Royal St. George Yacht Club for cranes and boats;
(vi) proper access aisles for the nose-on car parking adjoining the side of the Royal St. George Yacht Club;
(vii) adequate turning circle for buses;
(viii) improved safety and visibility at the proposed pedestrian crossing.
(c) Detailed drawings showing the requirements of (a) and (b) above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason:
In the interest of orderly development and traffic safety.
(6) The pavement treatment of the proposed pedestrian link to the DART station where it lies within the ownership and control of (the Minister) shall be upgraded by means of paving, signage, safety barriers and, as necessary, pavement separation and other landscaping measures as may be required to reinforce clear and strong pedestrian links to the adjoining urban centre, set-down areas and car parks, so as to maximise pedestrian safety and reduce pedestrian/vehicular conflicts to a minimum. Detailed drawings showing proposals to achieve the above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason:
In the interest of pedestrian safety and orderly development.”
It appears from a consideration of the aforesaid conditions that the Board was not satisfied with the details on the plans submitted to it with regard to (a) the disembarkation vehicle standage area and the methods of control of throughput of vehicles necessary to regulate traffic movements on Harbour Road which necessitated, inter alia,the merging of the initial six lanes to the final exit from the said standage area on to Harbour Road;
(b) the design of the exit from the disembarkation standage area;
(c) the proposals for off road heavy goods vehicles embarkation queue;
(d) the design of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza;
(e) the pavement treatment of the proposed pedestrian link to the DART Station where it lies within lands within the ownership and control of the Minister.
Being so dissatisfied, it did:
(1) In relation to (a) require that revised details of the area therein referred to and the methods of control of throughput of vehicles be submitted to and agreed with the planning authority.
(2) In relation to (b), require the Minister to provide for a redesign of the exit from the disembarkation area so as to exclude heavy goods vehicles from turning left towards the Royal Marine Road junction and directed that detailed drawings showing this requirement be submitted to and agreed with the planning authority.
(3) In relation to (c), require the Minister to revise the proposals submitted for off road heavy goods vehicles embarkation queue so as to ensure queuing does not tail back on to Harbour Road and directed detailed drawings showing the said requirement be submitted to and agreed with the planning authority.
(4) With regard to (d), require the Minister to provide for a redesign of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza so as to provide for the matters set out at (i) to (viii) in Condition 5 (b) and direct that detailed drawings showing the said requirements be submitted to and agreed with the planning authority.
(5) With regard to (e), direct the upgrading by means of paving, signage, safety barriers and as necessary, pavement separation and other landscaping measures as may be required to reinforce clear and strong pedestrian links to the adjoining urban centre, set down areas and car parks, so as to maximise pedestrian safety and reduce pedestrian/vehicular conflicts to a minimum, and direct that detailed drawings showing proposals to achieve these objects be submitted to and agreed with the planning authority.
It is clear from the reasons given for the imposition of the aforesaid conditions that the Board was concerned to ensure orderly and adequate traffic management in the interests of traffic safety, to avoid traffic congestion and to provide pedestrian safety.
I have endeavoured to set forth in a short but hopefully complete manner the matters, other than those relating to contributions to the planning authority, left by the Board for agreement between the Minister and the local authority.
As appears from the judgment of the learned trial judge, the case made on behalf of the applicant was “that the imposition by the Board of the conditions in question which leave a number of matters relating to traffic to be agreed between the Minister and the planning authority, constitutes an abdication by the Board of its responsibility to determine the matter and is, in the result, ultra vires the powers of the Board under the Local Government (Planning and Development) Acts, 1963 to 1993.”
In the course of his judgment, the learned trial judge stated:
“It is obvious that the proposed development has aroused much controversy and that there is a sharp divergence of view between the applicant and other residents of Dun Laoghaire on the one hand and the Minister and his advisers on the other. It is, however, accepted by the parties to the present application that this Court is not concerned in any way with the advantages or disadvantages of the proposed development in planning and environmental terms: they are exclusively matters for determination by the planning authority in the first instance and the Board on appeal. I am solely concerned with whether the imposition of the conditions in question was a lawful exercise by the Board of their powers under the relevant legislation.”
The proceedings herein had been instituted by the applicant in the High Court in accordance with the provisions of s. 82 of the Local Government (Planning and Development) Act, 1963 as amended by s. 19, sub-s. 3 of the Local Government (Planning and Development) Act, 1992, by way of an application for judicial review under O. 84 of the Rules of the Superior Courts, 1986, an order giving leave to apply therefor having been dispensed with by agreement between the parties.
Section 82, sub-s. 3B (a) of the Act of 1963 provides that:
“. . . such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.”
=
Section 82, sub-s. 3B (b) (i) of the Act of 1963 provides that:
“The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
In the High Court, counsel on behalf of the applicant had submitted that:
(i) the central issue for resolution by the Board was the significant increase in traffic, including the greatly increased volume of heavy goods traffic, which would unarguably be generated by the proposed development;
(ii) while the relevant legislation envisaged that the planning authority or Board could impose conditions requiring certain matters, such as the amount of a contribution to services, to be determined by agreement by the planning authority and the developer or, in default of agreement, by the Board, it did not contemplate the abdication by either the planning authority or the Board of their decision in relation to a central issue;
(iii) the Board could not dispose of what was regarded as a crucial issue, viz. the significant increase in traffic, by leaving so many of the relevant problems which arose to be resolved between the Minister and the planning authority without interested parties being afforded any opportunity to be heard;
(iv) the action of the Board in so doing amounted to an abdication by it of its decision making powers in regard thereto and that the Board was not acting within its statutory powers in leaving so wide a range of matters undetermined.
The learned trial judge held that:
(a) the question as to whether the imposition of conditions of this nature constitutes an improper abdication by the Board of its statutory role is essentially a matter of degree which must be resolved having regard to the circumstances of the particular case; (b) the matters which are left to be agreed between the Minister and the planning authority are, of their nature, such as to render the imposition of detailed conditions impractical;
(c) it cannot fairly be said that the imposition of conditions of this nature constituted an abdication by the Board of its statutory duties; and
(d) the conditions are not to any significant extent uncertain or ambiguous.
The learned trial judge refused the application for certiorari by way of judicial review in respect of the grant of permission by the Board and having heard counsel for the parties granted leave to the applicant to appeal to this Court against his decision and certified that the decision involved a point of law of exceptional public importance.
The applicant has appealed to this Court on the grounds that the learned trial judge erred in law and misdirected himself:
(1) in holding that the matters which were left to be agreed between the Minister and the planning authority were of their nature such as to render the imposition of detailed conditions impractical, and
(2) in holding that the imposition of conditions such as those in question in the said application did not constitute an abdication by the Board of its statutory duty.
The basic issue for determination in this appeal is the nature of the jurisdiction of the Board in the determination of an appeal under the Local Government (Planning and Development) Acts, 1963-1993, from the decision of a planning authority, the powers and obligations of the Board, the nature of the conditions which they may impose upon the granting of permission for development under the Acts and the extent to which the Board may in the imposition of such conditions leave matters to be agreed between the developer and the planning authority.
Section 26, sub-s. 1 of the Act of 1963 provides that:
“Where –
(a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and
(b) any requirements relating to the application of or made under such regulations are complied with,
the authority may decide to grant the permission or approval subject to or without conditions or to refuse it; and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in subsection (2) of this section.”
Section 26, sub-s. 2 provides that:
“Conditions under subsection (1) of this section may, without prejudice to the generality of that subsection, include all or any of the following conditions.”
The conditions are set out at (a) to (j) of the said sub-section.
Where an appeal is brought from a decision of the planning authority, the Board is obliged to determine the application as if it had been made to it in the first instance and the provisions of s. 26, sub-ss. 1 and 2 of the Act of 1963 shall apply, subject to any necessary modifications in relation to the determination of an application by the Board on appeal as they apply in relation to the determination of an application by a planning authority.
Section 14, sub-s. 4 of the Act of 1976 provides:
“In case there is attached to a permission or approval granted under section 26 of the Principal Act a condition which provides that a contribution or other matter is to be agreed between the planning authority and the person to whom the permission or approval is granted and that in default of agreement the contribution or other matter is to be determined by the Minister, the condition shall be construed as providing that in default of agreement the contribution or other matter is to be determined by the Board.”
This section clearly envisaged that the Board was empowered, in imposing a condition on the grant of a planning permission in regard to a contribution or other matter to provide that it be agreed between the planning authority and the person to whom the permission or approval is granted.
Counsel on behalf of the Board submitted that this sub-section was not confined to contributions and placed emphasis on the reference to”other matter” in the sub-section but accepted that this did not permit the planning authority or the Board to abdicate their decision-making powers completely and submitted that it was a question of degree whether they had so abdicated them in any particular case.
Counsel on behalf of the applicant, however, submitted that while the planning authority or the Board could impose conditions requiring certain matters to be determined by agreement between the planning authority and the developer, it did not contemplate the abdication by either the planning authority or the Board of their decision making powers in relation to what he described as “the central issue”.
While the regulation of traffic was of crucial importance to the applicant and was the subject of the conditions relevant to the issues in the High Court it would be incorrect to describe it as “the central issue” in the appeal to the Board. It was but one of the factors to be taken into account by the Board in the appeal against the decision made by the planning authority on the 25th February, 1994, to grant subject to conditions a permission to the Minister for development in accordance with the plans and particulars lodged with Dun Laoghaire Corporation described in the public notice as the extension and refurbishment of “the existing ferry terminal facility at St. Michael’s Wharf, Dun Laoghaire Harbour to accommodate a new High Speed Ferry Service and existing ferry services”.
As appears from the planning permission, these included:
(a) the reclamation from the sea of approximately 1.5 hectares to the west of existing pier;
(b) the renewal and extension of traffic marshalling areas to a total of 3.2 hectares;
(c) the construction of a new two-storey terminal building incorporating arrivals/departure hall, tourist office and support offices (3,340 square metres);
(d) the refurbishment of the existing two-storey St. Michael’s terminal building together with its extension and the addition of a third storey in part to cater for departures lounge, restaurant, and arrivals area together with port support office accommodation and facilities (2,875 square feet);
(e) the construction of five ticket booths, motorist facilities building (250 square metres), customs turning out building (240 square metres) and terminal security fencing;
(f) the construction of ferry linkspan, bank seat and dolphin together with elevated passenger walkways;
(g) the provision of amenity/civic features including public promenade, public deck and hard and soft landscaping;
(h) the provision of two separate controlled public parking areas.
By any standards this was a major development and it is against this background that the nature of the conditions imposed by the Board with regard to the flow of traffic and the provision of suitable kerbing must be considered, in particular with regard to the provision that the plans in regard thereto be subject to agreement between the Minister and the planning authority.
In Keleghan and Others v. Corby and Dublin Corporation (1976) 111 I.L.T.R. 144, the planning authority had granted a permission subject,inter alia, to a condition that details of a new access road were to be resubmitted for agreement and it was argued that the permission was invalid because of the condition in question.
For other reasons the planning permission granted in that case was held to be invalid but in his judgment McMahon J. stated:
“I think it better to reserve any decision on the third point made by Mr. Gaffney, namely assuming that the application had in fact been, as it was construed by the planning authority, to include access or change of the user of the land to provide access from the cul-de-sac.Whether permission has been validly granted by imposing a condition that details of the access be submitted for agreement, I can see serious difficulties about that from the point of the planning law. A planning authority is entitled to grant permission, subject to conditions requiring work to be done, but when that is done planning permission must specify the work to be done and any person, who thinks he is prejudiced by it, can appeal because he has before him details of the work to be done, but in this case what was granted was permission for access subject to details to be submitted for agreement. The public would have no knowledge what details were in fact being agreed and no way of appealing against the details agreed on between the applicants and the planning authority.”
This question was considered by Murphy J. in the course of his judgment in Houlihan v. An Bord Pleanala (Unreported, High Court, Murphy J., 4th October, 1993). In that case, Kerry County Council granted permission for the erection of 22 holiday homes, a reception block and the diversion of a road at Ballinrannig, Ballyferriter in the County of Kerry.
Mr. Houlihan objected to the development and an oral hearing was conducted into the application by An Bord Pleanala who granted permission for the said development subject to nine conditions. Mr. Houlihan sought and obtained leave to apply by way of an application for judicial review for an order of certiorari quashing the said decision on a number of grounds. The ground relevant to these proceedings was as follows:
“That the conditions attaching to the issue of the planning permission by An Bord Pleanala contained so many matters which were to be agreed between the developer and the Kerry County Council that they could result in a totally different development from that originally sought and that by leaving so many matters to be agreed between the developer and the County Council the statutory right of appeal from such decisions had been removed.”
In the course of his judgment, Murphy J. stated:
“[T]he conditions attached to the permission granted by the Board do call for discussion and agreement between the planning authority and the developer on many issues. In condition (1) agreement is required between those parties as to the revision of the layout plan to accommodate the re-siting of the northern boundary of the property as called for in that condition. In condition (3) agreement must be reached on the manner for the re-routing in an easterly direction of the effluent discharge main and also agreement in relation to other details of the foul drainage arrangements including the treatment plant. Condition (4) requires agreement on the eight topics specified in that condition and condition (6) requires that a public access road along the western boundary of the site should be constructed to the requirements of the planning authority. There are, therefore, approximately twelve matters on which the agreement or approval of the planning authority is required before one can say with complete certainty what is entailed in the conditions annexed to the permission granted by the Board. Notwithstanding the number of matters on which agreement is outstanding and the subject matter thereof, counsel on behalf of the Board contends that these are essentially technical matters which in the interests of all parties, that is to say, the developer, the planning authority and the local residents, can and should be delegated by the Board to the local authority and their resolution postponed to a later date. Undoubtedly some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the matters left undefined is such as to render the permission granted invalid. In my view – and as I understand it neither party would disagree – the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree. I have little difficulty in concluding that the Board was justified in stipulating that the new access road should be completed in accordance with the requirements of the planning authority. Again I take the view, though in this case with a lesser degree of confidence, that the matters stipulated in condition (4) are essentially technical matters or matters of detail, decisions on which could be left to the planning authority and developer without invalidating the statutory decision of the Board. However, it does seem to me that the condition in relation to the effluent discharge mains deals with a matter which is rather more serious and delegates a discretion which is very wide in its scope. The precise terms of the condition are as follows:
‘The effluent discharge main shall be re-routed in an easterly direction in a manner to be agreed with the planning authority. Other details of the foul drainage arrangements, including the treatment plan, shall also be agreed with the planning authority before development commences.’
The permission explains that the reason for that condition was ‘in the interest of visual amenity and in order to avoid pollution’.
The reason why the effluent pipe may impact on the visual amenity is explained clearly in the report of Messrs. Mullen & O’Sullivan exhibited in the affidavit sworn by Mr. A.J. O’Sullivan on the 9th April, 1992. That report explains that the effluent pipe would run over rocks along the shore for a distance of 45 metres and could be clearly seen from the beach as the report purported to demonstrate in view E annexed thereto. I refer to the Mullen & O’Sullivan report solely to demonstrate the fact that the effluent discharge main was and is a matter of particular importance in the present case. It is for that reason and in those circumstances that it seems to me inadequate and insufficient for the Planning Board to require simply that the effluent discharge main should be re-routed ‘in an easterly direction in a manner to be agreed with the planning authority’. I would have no difficulty in upholding the condition if the condition imposed by An Bord Pleanala had prescribed that the main should be re-routed along a wide but defined pathway on a particular line to be selected by the developer with the approval of the planning authority. It does not seem to me that a discretion or tolerance would invalidate a permission but to give, as has been done in the present case, a power by way of delegation from the Planning Board to approve all or any route for the effluent discharge main provided only that it is in an easterly direction seems to me to constitute an improper abdication by the Board of its responsibilities in the particular circumstances of this case.
A challenge was also made to condition (1) which called for the re-siting of the northern site boundary. Whilst I was not convinced by the argument made as to the possible ambiguity as to the boundary which was to be moved in a southerly direction by a distance of five metres, I feel that the Planning Board should take advantage of my decision on this application to clarify any doubts which may arise in that regard. I should say, however, that I do not doubt their right to delegate to the planning authority power to agree with the developer the revisions of the layout which would be consequent upon the resiting of the boundary.”
In this passage Murphy J. expressed the view that:
(a) some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise;
(b) the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree;
(c) technical matters or matters of detail could be left to the agreement of the planning authority and the developer without invalidating the statutory decision of the Board;
(d) the Board had the right to delegate to the planning authority to agree with the developer the revisions of the lay-out consequent upon the re-siting of the boundary;
(e) to give a power by way of delegation from the Board to approve all or any route for the effluent discharge main provided only that it is in an easterly direction constituted an improper abdication by the Board of its responsibilities in the particular circumstances of the case and that he would have no difficulty in upholding the condition if the condition imposed by the Board had prescribed that the main should be rerouted along a wide but defined pathway on a particular line to be selected with the approval of the planning authority.
In the course of his judgment in the present case, the learned trial judge (Keane J.) stated that:
(1) He adopted the view of Murphy J. in Houlihan that the question as to whether the imposition of conditions of this nature constituted an improper abdication by the Board of its statutory role was essentially a matter of degree which must be resolved having regard to the circumstances of the particular case.
(2) In the present case the matters which were left to be agreed between the Minister and the planning authority were, of their nature, such as to render the imposition of detailed conditions impractical. In this connection, the statutory role of the Board must be borne in mind. In a sense, it was functus officio when it gave a decision on appeal. It had no further role in the policing of the permission which it has granted nor had it any day-to-day responsibility for the enforcement of the Local Government (Planning and Development) Acts, 1963 to 1993, in the area of the
planning authority. That was the function of the planning authority who also, in its capacity as roads authority, had continuing responsibilities in relation to traffic in its area which were not within the province of the Board.
(3) Taking all those factors into account, it could not fairly be said that the imposition of conditions of this nature constituted an abdication by the Board of its statutory duties.
I agree with the aforesaid statements made by Murphy and Keane JJ.
Accepting as I do these statements, the position of the Board would appear to be as follows:
1. The Board is entitled to grant a permission subject to conditions.
2. The Board is entitled, in certain circumstances, to impose a condition on the grant of a planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.
3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision-making powers of the Board depends upon the nature of the “other matter”which is to be the subject matter of agreement between the developer and the planning authority.
4. The “matter” which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and the circumstances of each particular application and development.
5. In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board is entitled to have regard to:
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of the practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
(d) the functions and responsibilities of the planning authority;
(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;
(f) whether the enforcement of such conditions require monitoring or supervision.
6. In imposing conditions of this nature, the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement, to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority can reach agreement.
The matters stipulated in the conditions referred to in this case are essentially technical matters or matters of detail relating only to one aspect of the development, viz. the control of the flow of traffic, with, as stated by the Board, the objectives of:
(a) ensuring orderly traffic management in the interests of traffic safety and avoiding traffic congestion,
(b) ensuring that adequate traffic arrangements are in place to cater for the operational traffic flows generated by the proposed development in the interests of road safety and the convenience of the public,
(c) orderly development and traffic safety,
(d) pedestrian safety and orderly development, and
(e) the payment by the Minister to the local authority of a contribution towards the expenditure proposed to be incurred by the local authority in respect of works facilitating the proposed development.
The conditions contain sufficient detail to enable the developer and the planning authority to comply with the requirements of the Board.
Condition 2 establishes that the purpose of the details required to be agreed was to regulate traffic movements on Harbour Road and the merging of the initial six lanes to the final exit from the standage area on to Harbour Road.
Conditions 3 and 4 provide for the payment to the local authority of a contribution to be agreed between the Minister and the local authority towards the expenditure to be incurred in respect of works facilitating the proposed development.
The requirements for Condition 5 (a) are clearly set forth and establish that their purpose is to exclude heavy goods vehicles from turning left towards Royal Marine Road junction and to ensure that queuing does not tail back on Harbour Road.
Condition 5 (b) sets out in detail the purpose of the redesign of the proposed roundabouts at the bottom of the Royal Marine Road and the matters to be provided for in the detailed drawings to be agreed between the Minister and the planning authority.
Condition 6 clearly sets forth what is required by the Board in relation to the pavement treatment of the proposed pedestrian link to the DART Station and the nature of the upgrading required.
Again, what is required to be agreed is merely a matter of detail.
I am satisfied that the Board has complied with the criteria relating to matters which may properly be left to the developer and the planning authority to agree upon and that the learned trial judge was correct in holding that the imposition of the said conditions did not constitute an abdication by the Board of its statutory duties.
I would dismiss the appeal.
I have read the judgment about to be delivered by Blayney J. and I agree with it and with the additional criterion stated by him.
Blayney J.
I agree that this appeal should be dismissed.
The net issue in the appeal has been set out fully in the judgment of the Chief Justice so it is only necessary for me to summarise it. In essence, the applicant seeks to have set aside the planning permission granted to the Minister for the Marine by An Bord Pleanala (hereinafter referred to as the Board) on the ground that the Board had no power to impose three of the conditions subject to which the planning permission was granted. Other conditions were referred to also in the course of the hearing but the appeal was really concerned with three. Two of these conditions have to do with regulating traffic, and the third with provision being made for pedestrians. All three conditions required that the details of the work to be done should be agreed between the Minister and the planning authority.
The principal case made on behalf of the applicant is that the effect of conditions in this form is that the right of members of the public to object to the work to be carried out under the conditions is excluded. In addition it is submitted that in imposing conditions in this form the board is abdicating in favour of the planning authority its power to determine the appeal. At the same time, counsel for the applicant accepts that the Board must not be put in a straitjacket when it comes to exercising its discretion in the matter of imposing conditions, but he submits nonetheless that in regard to the three conditions to which I have referred the Board has actedultra vires.
These three conditions are as follows:
“(2) Revised details of the disembarkation vehicle standage area and methods of control of throughput of vehicles, so as to regulate traffic movements on Harbour Road, shall be submitted to and agreed with the planning authority. To this end, details shall include proposals to provide for merging of the initial six lanes to the final exit from the standage area on to Harbour Road.
Reason
To ensure orderly traffic management in the interest of traffic safety and to avoid traffic congestion.
(5) (a) The Minister shall provide for –
(i) a redesign of the exit from the disembarkation standage area, so as to exclude heavy goods vehicles from turning left towards the Royal Marine Road junction, and
(ii) revised proposals for off road heavy goods vehicles embarkation queue, so as to ensure queuing does not tail back on to Harbour Road.
(b) The Minister shall provide for a redesign of the proposed roundabouts at the bottom of Royal Marine Road adjacent to the proposed public plaza, so as to provide for –
(i) suitable access from the proposed bus lay-by to the roundabout;
(ii) adequate turning radii to provide for feed to the junction of Royal Marine Road and Queen’s Road;
(iii) a more orderly access from the area in front of the Royal St. George Yacht Club (that is between the yacht club and Queen’s Road) into the roundabout and to provide a through route from the Carlisle Pier to Harbour Road;
(iv) improved separation between the car park (beneath the public plaza) exit and the bus bay exit;
(v) suitable access and egress to the area to the rear of the Royal St. George Yacht Club for cranes and boats;
(vi) proper access aisles for the nose-on car parking adjoining the side of the Royal St. George Yacht Club;
(vii) adequate turning circle for buses; (viii) improved safety and visibility at the proposed pedestrian crossing.
(c) Detailed drawings showing the requirements of (a) and (b) above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason
In the interest of orderly development and traffic safety.
(6) The pavement treatment of the proposed pedestrian link to the DART Station where it lies within lands within the ownership and control of (the Minister) shall be upgraded by means of paving, signage, safety barriers and, as necessary, pavement separation and other landscaping measures as may be required to reinforce clear and strong pedestrian links to the adjoining urban centre, set down areas and car parks, so as to maximise pedestrian safety and reduce pedestrian/vehicular conflicts to a minimum. Detailed drawings showing proposals to achieve the above shall be submitted to and agreed with the planning authority within three months of the date of this order.
Reason
In the interest of pedestrian safety and orderly development.”
In considering whether these conditions are ultra vires the Board, it seems to me that the first thing that has to be done is to see what is their relevance in the context of the overall planning permission which is being granted. And when this is looked at it is clear that they are very peripheral. The works for which planning permission was granted were very extensive. They included the following:
(a) the reclamation from the sea of approximately 1.5 hectares to the west of existing pier;
(b) the renewal and extension of traffic marshalling areas to a total of 3.2 hectares;
(c) the construction of a new two storey terminal building incorporating arrival/departure hall, tourist office and support offices (3,340 sq. meters);
(d) the refurbishment of the existing two storey Saint Michael’s terminal building together with its extension and the addition of a third storey in part to cater for departure lounge, restaurant, and arrivals area together with port support office accommodation and facilities (2,875 sq. feet);
(e) the construction of five ticket booths, motorist facilities building (250 sq. meters) customs turning out building (240 sq. meters) and terminal security fencing;
(f) the construction of ferry Linkspan, bank seat and dolphin together with elevated passenger walkways;
(g) the provision of amenity/civic features including public promenade, public deck and hard and soft landscaping;
(h) the provision of two separate controlled public parking areas.
It is clear that one of the major effects of this development will be to increase greatly the traffic coming to the ferry terminal at Dun Laoghaire, and this is something which must have been taken into account by the Board but, having done so, it was satisfied that the planning permission should be granted. However, it took the view that conditions 2, 5, and 6 were necessary to ensure orderly traffic management and traffic safety. Clearly the Board had power to impose conditions for this purpose. The only question is whether it had power to impose conditions in this form, and it seems to me that this question has to be looked at from the point of view firstly of the public, and secondly from the point of view of the developer who in this case is the Minister for the Marine. In Crodaun Homes Ltd. v. Kildare County Council [1983] I.L.R.M. 1 Griffin J. said in his judgment at pp. 2 and 3:
“As has frequently been pointed out by this Court in recent years, the grant or refusal of a permission for development involves three parties – the developer, the planning authority and the public.”
The powers of the Board must be considered in the instant case principally in the light of the rights of the public but the rights of the Minister for the Marine must also be considered.
The applicant as a member of the public says that one of the reasons he objected to this development is because of the traffic it would generate and he says that because of the form of the conditions he will be precluded from objecting to the ultimate form of the works to be carried out pursuant to these conditions. This is undoubtedly so, but in my opinion no right of the applicant will be prejudiced as a result. The applicant’s objection to the development on the grounds that it would increase excessively the traffic at the port was clearly rejected by the Board. However, the Board took the view that the traffic needed to be regulated and imposed the conditions in question with this in view. The applicant could not possibly have any grounds for objecting to this. On the contrary, once permission for the development had been given, it was clearly in the interest of the applicant that conditions should be imposed which would ensure to the greatest possible extent that there would be proper management of the traffic.
The Chief Justice has set out in his judgment the criteria which in his view should guide the decision of the Board when imposing conditions. I would add another criterion which it seems to me is relevant when considering the matter from the point of view of the public. It is this: could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant to the condition, having regard to the precise nature of the instructions in regard to it laid down by the Board, and having regard to the fact that the details of the work have to be agreed by the planning authority?
I am satisfied that in the instant case having regard to the nature of the work to be done, and having regard to the very detailed instructions set out in the conditions, and the purpose for which they were imposed, no member of the public could reasonably have objected to them and so the Board in imposing the conditions in this form was not interfering with or prejudicing any right of the public.
It would have been open to the Minister for the Marine, as the developer, to question the conditions but he has not done so and so it must be assumed that he is satisfied with them. Had he not been so satisfied, it seems to me that there are grounds on which they might have been questioned.
In the first place, when a matter is left to be agreed between two parties, there is always the possibility that they may not be able to agree, and in that event what is to happen? In the instant case, from the practical point of view, since the Minister is obliged to get the agreement of the planning authority, it is the view of the planning authority which will prevail. Because of this, a developer other than the Minister might have objected that his appeal, in so far as the works the subject of the conditions were concerned, was not being decided by the Board but by the planning authority.
The Minister has not made this case and so it is not necessary to consider it but the fact that it might have been made suggests that it might have been preferable if the conditions had included the words “and in default of agreement shall be determined by the Board”.
Section 14, sub-s. 4 of the Local Government (Planning and Development) Act, 1976, clearly envisages conditions in this form being imposed by the Board. It provides as follows:
“In case there is attached to a permission or approval granted under section 26 of the Principal Act a condition which provides that a contribution or other matter is to be agreed between the planning authority and the person to whom the permission or approval is granted and that in default of agreement the contribution or other matter is to be determined by the Minister, the condition shall be construed as providing that in default of agreement the contribution or other matter is to be determined by the Board.”
The reference to the Minister is to the Minister for Local Government who, up to the passing of the Act of 1976, was the person who decided all appeals from planning authorities. Under s. 14, sub-s. 1 of the Act of 1976 his functions in this regard were transferred to the Board. A permission or approval granted under s. 26 of the Local Government (Planning and Development) Act, 1963, could be granted either by the planning authority under sub-s. 1 or by the Minister (prior to the Act of 1976) under sub-s. 5 (b), so s. 14, sub-s. 4 of the Act of 1976 applied both to conditions imposed by a local authority and to conditions imposed by the Minister and accordingly it is in my view a clear precedent for conditions in this form being imposed by the Board subject of course to such conditions not being prejudicial to the rights of the public which I dealt with in the first part of this judgment.
For all these reasons I am satisfied that the conditions imposed by the Board were not ultra vires and that this appeal should be dismissed.
Barrington J.
I agree with the judgments delivered herein.
Ashbourne Holdings Ltd. v. An Bord Pleanala
[2003] IESC 18 (10 March 2003)
JUDGMENT of Mr. Justice Hardiman delivered on the 10th day of March, 2003, [Nem Diss].
1. The applicant/respondent (hereafter “Ashbourne”) is the owner of lands comprised in Folio 5759 of the Register of Freeholders, Co. Cork. These lands are commonly known as the Old Head of Kinsale. Ashbourne has developed the lands by laying out a golf course on them. It is accepted by the parties that this development was, at all material times, an exempt development and did not require planning permission.
2. By a decision of An Bord Pleanála (hereafter “the Board”) of the 6th May, 1993 Ashbourne was granted planning permission subject to conditions for a development. This comprised the erection of a golf clubhouse and ancillary equipment building together with various necessary site works, car park, roadways and drainage, on a portion of the lands. Ashbourne erected the clubhouse and carried out other works on the lands but these were not carried out, in certain respects, in accordance with the planning permission and certain conditions were not complied with. Accordingly, Ashbourne applied to the County Council for retention and completion of the golf clubhouse, car park and access road, and for retention of the machinery shed, and retention and modification of the entrance. Permission was granted by the County Council, again subject to certain conditions. On this occasion Ashbourne appealed against some of these conditions to the Board. The result of the appeal was that the application for retention was granted subject, inter alia, to the conditions challenged in these proceedings. Eight conditions were imposed by the Board in its decision dated the 31st October, 1997.
3. In substance, the challenged proceedings relate to the question of public access to the Old Head of Kinsale. They are expressed as follows:-
“(1) Access shall be provided at all times during daylight hours for the public to the lighthouse and the area marginal to the neck and the northern rim of the headland to the old lighthouse.
(2) Access to the cliff face and cliff edges for interest groups shall be made available in accordance with details to be submitted to the planning authority for agreement, within three months of the date of this permission. In default of agreement this matter shall be determined by An Bord Pleanála.
4. Reason: In the interest of amenity and orderly development and having regard to the planning history of the site.
(3) Within three months of the date of this permission the following details shall be submitted to the planning authority for agreement:
(a) –
(b) design, construction and finished detail of the gravel path between the De Courcey Castle and the old lighthouse compound and its specific location.
(4) Any charge for access by the public to the lands south of the new gateway shall not exceed the reasonable cost of insurance and administration of entrance control. This figure shall be agreed with the planning authority within two months of the date of this order and shall not be increased save for the consent of the planning authority”.
5. By order of the High Court (McCracken J.) of the 23rd March, 2000 Ashbourne were granted leave to seek judicial review of these conditions. McCracken J. delivered a written judgment of that date setting forth his reasons for granting of leave. On the 21st March, 2001 the High Court (Kearns J.) decided to quash the conditions the subject of this appeal.
6. By a further order, the High Court certified, pursuant to s.82(3B)(b) of the Local Government (Planning and Development) Act, 1992, as amended, that the Board have leave to appeal to the Supreme Court on three specified points of law. More general issues were, however, argued on the hearing of the appeal.
Issues on Appeal
7. On the hearing of this appeal, the issues raised fell into two broad categories. The first of these related to the validity in principle of conditions directed at ensuring or regulating public access to the Old Head of Kinsale lands, adjacent to the lands for which permission or retention was sought, and being in the same ownership. The second category related to res judicata and to whether the conduct of Ashbourne in the planning history of the lands disentitled it to relief to which it might otherwise be entitled, or allowed the Court in its discretion to refuse such relief. These are all estoppel or preclusion issues.
Conditions relating to public access
8. These conditions were challenged upon a number of grounds. The most radical of these was that the conditions in question were simply ultra vires the Board. It was also submitted that the said conditions, or some of them, were void for vagueness or uncertainty or were unreasonable in the legal sense. Counsel for Ashbourne, however, described the question of vires as “the first and last question” on this aspect and it is convenient to deal with this first.
9. There are a number of factual matters relevant to the vires question which are indisputable. Firstly, prior to the development of the golf course there was no public access as of right to any part of the Old Head of Kinsale. This was found to be so in an earlier decision of the Board and was not challenged in the present proceedings.
10. Secondly, the Board was not aware of any previous case in which a condition of public access was attached to a grant of planning or retention permission in respect of adjoining lands.
11. Thirdly (though this mainly relates to the disentitlement/discretion point relied on by the Board in the alternative) it is indisputable that Ashbourne had indicated, prior to the first application for permission, a willingness to accept and facilitate a measure of public access. Furthermore, it had not appealed conditions in that regard contained in the original planning permission.
12. Fourthly, though there is statutory provision, considered below, for the creation by order of the planning authority of public rights of way over lands, this had not been availed of in the present case. If a public right of way were thus created, the planning authority would be responsible for its maintenance. The Board, however, denied that the right of public access to which the disputed conditions relate is in the nature of a right of way.
Power to impose conditions
13. The power to impose conditions on a planning permission arises under s.26 of the Local Government (Planning and Development) Act, 1963. This confers a power on a planning authority to grant permission subject to or without conditions, or to refuse permission. It also provides that in dealing with any application “… the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof) … and the matters referred to in sub-s. (2) of this Section”.
14. Without prejudice to the generality of s.26(2), the following subsection states that “conditions” include all or any of a lengthy list of specific conditions. Of these the most relevant is:
“(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission.”
15. On the hearing of this appeal, no source of power to impose the challenged conditions other than s.26 was relied upon.
16. It is clear from the terms of s.26 that any condition must relate to the proper planning and development of the area. Furthermore, a condition relating to a development or use of any land adjacent to the land to be developed and in the same ownership or control requires to be a condition which is expedient “for the purposes of or in connection with” the development the subject of the permission.
17. It appears to me that these restrictions on the vires to impose conditions require to be strictly construed. The State (at the prosecution of FPH Properties S.A) v. An Bord Pleanála [1987] I.R. 698 is authority for that proposition in relation to the requirement for planning permission, and in relation to the vires to impose conditions under s.26(2)(a), the need for strict construction is still clearer and more explicit. Section 26(1) strictly limits or “restricts” the planning authority to the consideration of planning matters, being the proper planning and development of the area. The section goes on to mention specific matters to which it must have regard.
18. The structure of s.26, then, is that a general power to impose conditions is subject to a general restriction. This, insofar as relevant here, is to consider only the proper planning and development of the area and in doing so to have regard to the matters set out in sub-s.(2) of the Section.
19. This in turn provides that the conditions which may be imposed on a permission under sub-s. (1) “may without prejudice to the generality of that subsection”, include the conditions then set out. This list includes conditions relating to a large number of specific circumstances. The first of these, quoted above, is that relevant here.
20. There is no doubt that the general words of subsection (1) would permit the imposition of an otherwise proper condition even if it were outside the scope of any of the subparagraphs of subsection (2). That is the effect of the “without prejudice” provision.
21. But when a proposed condition is within the scope of any part of subsection (2) then, by reason of the last phase in subsection (1), the planning authority or Board must have regard to the relevant part, here (2)(a). The latter part of this subparagraph, beginning “so far as …”, imposes a restriction on the power to impose conditions relating to adjoining land.
22. Because of the organic linkage between the two subsections of
s.26, created by the last words of subsection (1), this restriction appears to me to apply to any condition relating to adjoining land.
23. Against this background, is a condition requiring public access to adjoining lands under the same control a proper planning condition? The Board contend that it is, at least in some cases. Counsel for the Board stated that it “may” not be intra vires to impose such a condition on a permission relating to the development of a private house. In connection with a development of the kind in question here, however, it was submitted that:-
“… having regard to the nature of the site, public access for those without the wherewithal to play golf is reasonable”.
And:
“Since planning permission enhances the value of land, there can be no objection to making it subject to a condition which may in other respects reduce its value.”
24. Moreover, it was contended, the obligation to allow the public on to the adjoining lands subsisted only as long as the planning permission was availed of. This feature, amongst others, was said to distinguish the right of public access from a public right of way.
25. In answer to these forthright submissions, Ashbourne was equally forthright. It was contended:
“The imposition of access conditions can be seen as a rudimentary attempt at social engineering made in the clear knowledge that the provision of public access is entirely hostile to the development proposal that is actually before it. This is the reality behind the multitude of documents that are before the court and which allegedly chart the planning history of the matter. The true history is of course much wider than the mere planning dimension but the developer and the court are confined to the prosaic parameters imposed by the constraints of planning and development law. Regrettably, both the planning board and the planning authority ignored these constraints.”
Accordingly:
“This litigation is the story of an administrative authority overreaching itself in an endeavour to achieve goals that are foreign to its statutory purpose … the Old Head of Kinsale is scenic. It provides wonderful views. It would make a worthwhile public facility and amenity if it were public. Unfortunately, it is not and it cannot lawfully be dedicated to the public either wholly or partly through the medium of a planning permission or more accurately by the inclusion of conditions in a planning permission.”
26. These are sharply polarised positions. The Board think it wrong that only those with the wherewithal to pay green fees to Ashbourne can enjoy the amenities of the Old Head of Kinsale. But it concedes that the public could not lawfully enjoy these amenities before Ashbourne purchased the land and developed its golf course either. A planning permission for the clubhouse and ancillary facilities is going to enhance the value of Ashbourne’s land. Accordingly, the Board submitted, they cannot complain if the public access condition in some other respect reduces the land’s value or increases the burdens on Ashbourne as landowner.
27. Ashbourne contends strongly that the Board’s public access arguments, whatever one’s response to them at a general level may be, have simply nothing to do with the question of whether the condition is within the powers conferred by s.26. They go further. They say that the justification of the condition in the terms quoted positively demonstrates that the actual reasons for the imposition of the condition relate to some social engineering project of the respondents, and not to planning matters at all. Ashbourne emphasised in this context (as well as in others) that it is open to a planning authority to create a public right of way over land either compulsorily or by agreement with the landowner: see ss.47 and 48 of the Local Government (Planning and Development) Act, 1963. But if the statutory power were availed of, then by s.49(1) of the Act the obligation of maintaining the right of way would devolve on the planning authority. In relation to vires, Ashbourne contend, the existence of this statutory power renders it still more unlikely that s.26 can be read as permitting the same purpose to be achieved obliquely without expense or responsibility to the planning authority as there is statutory power to achieve it otherwise. Ashbourne separately contends that the public access condition is a contrivance to avoid the expense, responsibilities and possible liabilities which would or might follow the creation of a statutory right of way. If this is so, the condition is ultra vires on a different basis, that of being for an improper purpose and of taking irrelevant material into account. These distinct arguments need to be kept strictly separate.
28. To these points the Board counters that where the Oireachtas has provided two mechanisms for achieving the same purpose the planning authority or the Board on appeal may choose either and is not bound to adopt a route which involves the incurring of expense or the assumption of responsibility. On the second point the Board says that a combination of the Occupiers Liability Act, 1995 and appropriately worded signs warning of any danger and disclaiming any liability would prevent Ashbourne being held liable in respect of an injury caused by a golf ball to a member of the public availing of access to the lighthouse pursuant to condition 1(1). Accordingly the condition of public access need not be more onerous on Ashbourne than a statutory right of way would be.
Decision on vires
29. Despite the strong positions adopted on each side, the question of vires comes down to a consideration of s.26. If the power to create conditions of this sort is within s.26 then only a successful attack on the constitutionality of that section could prevent its exercise in an appropriate case. If it is not within the section it is legally irrelevant that the Board may think it should be. The rights of property and the imperatives of public access are alike irrelevant to the question of vires, which is a wholly legal one. Ample authority was cited on both sides of the question, some of which will be considered below. Firstly, however, it is interesting to see how the Department of the Environment’s Development Control Advice and Guidelines deal with the matter. In the Department’s view, a condition must:
” – serve some genuine planning purpose in relation to the development permitted,
be directed at securing the object for which the powers of the Act were given
fairly and reasonably relate to the permitted development”.
30. The document goes on to suggest basic criteria to be considered in deciding whether to impose a condition. These involve considering whether the condition is a series of words:
• necessary,
• relevant to planning,
• relevant to the permitted development,
• enforceable,
• precise,
• reasonable.
Though this document cannot be said to be legally authoritative, it appears to me to be a reasonable commonsense view of s.26.
31. The section has been authoritatively construed in the judgment of this court delivered by Henchy J. in Killiney and Ballybrack Development Association Ltd v. The Minister for Local Government and Templetin Estates Ltd [1978] ILRM 78. Having quoted s.26(1) and referred to the next subsection the learned judge said:
“It will be seen, therefore, that the power to impose a condition in a development permission must be exercised within the limitations imposed by s.26. In deciding whether the grantor of the permission has kept within those limitations, it is necessary to look not only at the terms of the condition but also at the reason which the section requires to be given in support of it. If the reason cannot fairly and reasonably be held to be capable of justifying the condition, then the condition cannot be said to be a valid exercise of the statutory power. For instance, if the reason given is the attainment of an objective, and compliance with the condition could not possibly attain that objective, the condition will be held bad because it was given for an unreasonable reason.”
32. Equally, both the condition and the reason must refer to the development requiring permission. In Newbury Council v. Environment Secretary [1981] A.C. 578, the House of Lords was considering a condition to a change of use permission which allowed the use of World War II hangars for industrial storage. The condition required the removal of the hangers after ten years. The House of Lords doubted whether permission was required in the first place and held, according to the headnote at para. (3) “[T] that in any event, even if planning permission had been necessary for the use by [the applicant] of the hangars, in the circumstances of the present case the condition for their removal did not fairly or reasonably relate to the permitted development and was therefore void.” Lord Fraser of Tullybelton said at p. 609:
“… I am satisfied that, if the Secretary of State had correctly appreciated that a condition for removal of buildings attached to permission for change of use might be valid, he would nevertheless have certainly decided that in the circumstances of this case it was not sufficiently related to the permission and was therefore invalid. There was nothing that I can see about the change of use to a wholesale warehouse which required or justified a condition for removal of the buildings. The reason why the planning authority ordered their removal was to improve or restore the amenity of the neighbourhood by getting rid of ugly buildings. No doubt that was a very proper object, but it had nothing particularly to do with the use of the buildings as warehouses. The fact that the permission was in substance a temporary permission, as the Court of Appeal held, does not seem to me to be relevant to this matter.”
33. A similar conclusion was reached in a case which figured largely in the submissions of Ashbourne, The State (F.P.H. Properties S.A) v. An Bord Pleanála [1987] I.R. 698. There a permission for development was granted subject to a condition that the developer take elaborate steps in relation to the preservation of a historic house adjacent to the lands and under the control of the developer. On appeal, the Board imposed a condition that the house “was to be retained and restored and that the internal elements of the house were to be preserved, conserved or replaced in facsimile as their condition warranted …”. The High Court upheld this condition but the Supreme Court allowed the appeal. Giving the judgment of the court, McCarthy J. first made the remarks mentioned above as to the necessity for strict construction and continued:
“No doubt, the curtilage of Furry Park House adjoins, abuts and is adjacent to the land to be developed and is under the control of the [developer] (see s.26, subsection (2)(a) ). I do not accept, however that the impugned condition is one for regulating the development or use of such land; further, in my view, it is not covered by the expression ‘so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission’. I have no doubt it appears to the planning authority to be highly expedient to require the developer to expend a significant sum of money in preserving Furry Park House but that does not make it expedient for the purposes of or in connection with the authorised development…. In my view, to enable the relevant authority to impose a condition of the like created by condition 1 would require expression in the clearest terms”.
34. It will be observed that McCarthy J. faulted the condition, on two separate grounds: it did not relate to the “development or use” of the adjoining land and it was not a condition which could be regarded as expedient either for the purposes of or in connection with the authorised development. Nor did the learned judge consider that it could be justified under “the generality of sub-section (1)”, but that it would require express language. In FPH, the Court was referred to a number of English authorities and this led McCarthy J. to hold that there was no particular significance attaching to differences between the English Planning Acts of 1947 and 1971 and the provisions of s.26. I would only add that, in my view, the English statutes, which are relevant in a number of the cases cited from that jurisdiction are if anything less restrictive of a planning authority than the Irish equivalent by reason of the absence in them of the provision that the authority “shall be restricted to” considering certain matters: the English equivalent is “shall have regard to”.
35. Ashbourne submitted that this authority was “in itself sufficient to decide the case”, or at least the vires aspect of it.
36. It may also be noted that, while the High Court had upheld the condition in FPH, it did so on the basis that “[T]The respondents could reasonably take the view that the preservation of Furry Park House would be an amenity to the authorised development in that it would improve the visual attractiveness of the whole area and in that it would also preserve for low density residential purposes the house itself and its site which immediately adjoins the area to be developed. The respondents could therefore reasonably conclude that a preservation of Furry Park House is expedient for the purposes of and in connection with the development authorised”. (Emphasis added) No equivalent of the argument is open here.
37. The dictionary definition of “expedient” is “advantageous”. The alternative meaning “useful or politic as opposed to right or just” is presumably inapplicable to a statute conferring powers on a public authority. It seems extremely difficult to take the view that public access to the golf course would be in the interest of the amenity of the clubhouse. The Board did not contend for this proposition. Indeed, the Board contended that the phrase “expedient for the purposes of or in connection with” (the development) allowed restriction on the use of adjoining lands in order to preserve the amenity of the development. The permitting of public access to the lands appears to me to be an enforced separate development of them, rather than a restriction. “Development” includes any material change of use. As McCracken J. observed in a passage quoted hereafter, these conditions entirely alter the use of the golf course lands.
38. I cannot find in the Board’s written submissions a reference to FPH, or to another case to which we were referred: Hall and Co. Ltd. v. Shoreham-by-Sea Urban District Council and Anor. [1964] 1 All E.R. 1. There, a planning permission for a sand and gravel plant was subject to a condition that the developer would construct an ancillary road over the entire frontage of the site at their own expense and give a right of passage over it to and from other ancillary roads to be constructed on adjoining land. This road was anticipated to have a five year lifespan. The English Court of Appeal found the condition to be ultra vires and void for unreasonableness because it required the applicant to construct a road at its own expense and effectively to dedicate it to the public without the local authority being obliged to pay compensation. There was a “more regular course” for constructing a road at public expense under which compensation for compulsory acquisition would have to be paid, pursuant to the Highways Act, 1959.
39. Although the decision of the Court of Appeal in this case was put on a slightly varying basis in the various judgments, I think the ratio is most convincingly expressed by Lord Pearson at p. 260 of the report. He said:-
“There remains, however, the question of vires. By the general law a person whose land is taken for the purpose of making a highway is entitled to compensation. The effect of condition 3 is to convert a portion of the plaintiff’s land into a quasi-highway, and to give them no compensation.
I agree with Willmer L.J. that condition 3 is ultra vires because it is ‘unreasonable’ in the sense which has been explained in [the] cases. I should, however, be inclined to say that the element of ultra vires is to be found in the conflict with the general law relating to highways. The general words of [the statutory provision allowing the imposition of conditions] should not be interpreted as authorising a radical departure from the general law relating to highways”.
40. The approach in these cases suggests a number of thoughts in the context of the present case. Firstly, the disputed conditions are all within the scope of s.26(2)(a) in the sense that they relate to the development or use of lands adjoining the clubhouse development. If, however, they fail to meet the requirements of that sub-paragraph, that they be “expedient” not in some general planning sense but “for the purposes of or in connection with” the clubhouse development, I do not consider that the conditions can be justified by the general words of s.26(1). These words require that regard be had to the various matters set out in the sub-paras. of sub-s. (2). If, therefore, a particular condition is within the scope of one of these subparagraphs but does not meet its requirements, it would appear to contradict the intendment of sub-s.(1) to permit the condition to be imposed under the authority of general words.
41. More fundamentally, an incident of the ownership of land, according to the general law, is the right to exclude the public from it, unless there is a right of way acquired in some legally recognised manner, or created by statute. The rights of public access acquired by the condition appear to me to be in the nature of a right of way or (to adapt the phrase of Pearson L.J. quoted above) a quasi right of way. If this is so, then the statutory power of creating a right of way to be maintained by the local authority appears to be “another and more regular course open to that body to ensure some right of public access”. The existence of such an alternative course was the basis of Willmer L.J’s decision that:-
“Bearing in mind that another and more regular course is open to the defendants it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended”.
42. There is of course a significant difference between a condition requiring the construction of a highway, or quasi highway, and one allowing public access. But that condition itself appears to me to be an onerous one, especially having regard to the fact that amongst the areas to which access is required to be given is a cliff face. Nor does it seem to me that any conceivable warning notice, of the kind suggested by the Board, could provide comfort to a landowner obliged to admit groups to or near a cliff face. Indeed the Board itself only advanced the idea in connection with the hazard from golf balls. If the County Council itself (as the statutory scheme would require) had to maintain a right of way above or to a cliff face, this would fairly be regarded as a very onerous project and one expensive and perhaps impossible to insure. Any landowner who had to allow public access to such a site would be manifestly exposed to a risk of liability which is very real.
43. The Board, in responding to arguments based on Hall, relied on the decision of the House of Lords in Westminster Bank Limited v. The Minister for Housing and Local Government [1971] AC 508. There, the Bank’s application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the Highways Act, 1959, but in that event would have had to pay compensation for the injurious effect on the bank’s land. The bank sought to quash the refusal. It was held that although the local authority might have proceeded under the Act of 1959 they were entitled to refuse planning permission on the ground stated, even though the result would be to deprive the bank of compensation. But this result appears to have turned on a statutory provision, s.220 of the Town and Country Planning Act, 1962 which provided that “for the avoidance of doubt it is hereby declared that the provisions of this Act… apply… to any land notwithstanding that provision is made by any enactment in force at the passing of the Act of 1947… for…regulating any development of the land”. Lord Dilhorne said:-
“It was strenuously argued for the appellants that the county council, having failed to prescribe such a line under the Highways Act, could not lawfully achieve the [same] result … by refusing planning permission for all development within [the relevant area]. The validity of this argument depends on whether the county council had been given by Parliament a choice of methods for preventing such development or were bound to exercise their powers under the Highways Acts. The answer to this question, in my opinion, is to be found in section 220 of the Act of 1962”.
44. In the absence of an equivalent statutory provision, and we were referred to none, the Westminster Bank case appears to be of little direct assistance in the present case.
45. The reason given for the main access condition, condition 1, is “in the interest of amenity and orderly development and having regard to the planning history of the site”. Is the condition and the reason within the statutory power provided in s.26(2)(a) in the sense of being a regulation of the development or use of the adjoining lands and being open to the description of being ‘expedient for the purposes of or in connection with the development authorised by the permission’, i.e. the clubhouse? It appears to me that these conditions fail to come within in the scope of sub-s. 2(a) on two separate grounds. As McCracken J. said in his judgment granting leave to apply for judicial review “These conditions do not merely affect the physical development of the lands, but also entirely alter the use of the lands”. There is presently no use of the golf course lands for general public access for any purpose; it seems to me that the effect of the public access condition is to create a new use and not to control or restrict an existing one. It also appears to me that the condition of public access to the golf course cannot be described as expedient for the purposes of the clubhouse development. The clubhouse development is clearly a facility for golfers and no conceivable sense in which public access to the adjoining golf course is advantageous for the purposes of the clubhouse development has been suggested in argument. Equally, there is no sense in which public access to the golf course is expedient or advantageous in connection with the clubhouse development, and again none has been suggested. On the contrary, it was specifically envisaged by the Board that the public access condition might reduce the value of the development, but this was said to be justified on the basis that the general effect of the permission would enhance the value of the lands. To adapt what was said by McCarthy J. in FPH, I have no doubt that it appears to the planning authority to be highly expedient to require the developer to permit public access on to the Old Head of Kinsale, but that does not make it expedient for the purposes of or in connection with the authorised development. To adapt the words of Lord Fraser of Tullybelton in Newbury, even assuming the objective of public access to be a very proper object, it has nothing particularly to do with the use of the buildings as a clubhouse and equipment shed.
46. The “amenity” referred to in the reason for condition (1) must, having regard to terms of s.26(2)(a), be regarded as a reference to amenity of the clubhouse. To construe the phrase more broadly would ignore the limiting words in that subparagraph. Moreover, the judgment of this Court in FPH makes it clear that the amenity of the proposed development, and not of any broader area, is what a condition under subparagraph (a) must address. Since “amenity” means “pleasant circumstances or features, advantages” (see Re Ellis and Ruislip Northwood UDC [1920] 1 KP 343) it is unsurprising that no argument suggesting that the condition could rationally be related to the amenity of the clubhouse was advanced. The concepts of the “expedient” and of “amenity”, as those words are used in s.26, share the connotation of “advantage”. In the case of a sub-s. (2) condition, the advantage must be to the proposed development and not to any wider area.
47. The development on which the disputed conditions will have effect is not the clubhouse development at all, but the earlier development of the adjoining lands as a golf course. This was an exempt development, not requiring planning permission. I cannot see any power or vires to impose a condition which will have effect only on the exempt development of the adjoining lands, and which is incapable of any advantageous effect for the purposes of or in connection with the development to which the permission relates. It appears to me that there is substance in Ashbourne’s submission that the question of public access to the Old Head has nothing whatever to do with the clubhouse, the access road or the equipment shed, which are the developments requiring permission or retention. There was no lawful public access to the Old Head of Kinsale before they were built and the purposes for which, or in connection with which, they were developed is wholly unrelated to the question of public access to the Old Head.
48. Ashbourne’s submissions extended to a number of colourfully expressed “floodgates” arguments: could a farmer overlooking the Blaskett Islands be compelled to allow public access to his lands as a condition of planning permission for the development of a new bathroom or kitchen? Put thus, the question seemed to verge on the absurd, but it was given force by the absolute failure of the Board to concede any limit in principle to the type of development which might give rise to a condition of public access. Counsel for the Board did concede that the nature of the development had to be considered and that “maybe” a condition of public access to lands would not be properly imposed in the case of the development consisting of a private residence. But even in that instance, he did not exclude it.
49. In my view, the difficulty of laying down any limit in principle to a purported power to impose a public access condition arises from the fact that such a power is simply not within the scope of s.26. All the powers created by that section are limited or conditioned, either by the general words in s.26(1) or by individual limitations contained, in relation to specific types of condition, in the individual sub-paras. of sub-s. (2). Even if this access condition were a regulation of the use of adjoining lands, the capacity to impose it would still be conditional on its playing a role for the purposes of, or in connection with, the clubhouse development. A power thus limited is as far removed as can be from the claimed power to impose the condition because, having regard to the nature of the adjoining lands “public access for those without the wherewithal to play golf is reasonable”. This does not appear to me to be a planning purpose of any sort.
50. I am therefore of the view that the condition of public access is ultra vires the powers of the Board, and void. It follows that the other conditions which assume public access under condition 1 are also ultra vires.
Other contentions on validity
51. In view of the above findings, it is unnecessary to consider whether the disputed conditions or any of them are also void on other grounds. One of these, unreasonableness, is closely related to the ultra vires question: certain of the English authorities, in particular, regarded the disputed conditions as ultra vires at least in part because they were unreasonable. However, since I have found that the access condition here is ultra vires in the more basic sense that the statutory powers of the Board simply do not extend to such a condition, it is unnecessary to discuss its reasonableness. Equally, it is unnecessary to discuss the allegations of vagueness and uncertainty in the conditions. I would only say that if a private developer sought permission for a development consisting of the admission of the public, for a consideration, to cliff face lands and ancient structures, I would imagine that (if the proposal were entertained at all) very stringent conditions would, in the interests of public safety, be imposed on any permission. These are wholly lacking in the present conditions, as is any but the vaguest definition of the mode of access. These observations are wholly independent of the exempt user of the lands as a golf course, which clearly produces additional hazards. Of these, the Board’s inspector, Mr. Cranwell, said:-
“I consider that the operation of these lands as a golf course, due to the nature of the game, effectively excludes the public from those areas continuous to the playing area, and to try to impose any other regime where the public assume rights of access would give rise to conflict between the players and the public and could lead to situations of hazard arising to the public”.
52. In view of my findings on the vires question, it is equally unnecessary to consider whether, in the circumstances of the case, the Board were entitled to act otherwise than in accordance with the inspector’s report. But I would remark, obiter, that Mr. Cranwell’s point is manifestly a sensible and important one.
Estoppel and preclusion issues.
Res judicata
53. The Board alleges that Ashbourne is not entitled to challenge the disputed conditions in these proceedings because the issue of the power to impose them must be regarded as conclusively settled by the decision of the Board in 1993, which was unappealed by Ashbourne. Accordingly, they were estopped from raising the vires issue, per rem judicatam.
54. In this connection, reliance was placed on the decision of Gavan Duffy P. in Athlone Woollen Mills Company Limited v. Athlone Urban District Council [1950] IR 1. The judgment in that case provides many interesting sidelights on the early history of the planning process. For the purposes of the present action, however, the issue is simply stated. The company applied for a planning permission to reconstruct their mills which had been burnt down. This was granted by the defendant subject to three conditions. On appeal to the Minister, only one condition survived, which was a condition requiring a setback of twenty feet. Under the law as it stood, the company was entitled to compensation for the cost of this. However, its application to the Minister for such compensation was out of time, because its solicitor mistakenly concluded that the date of the decision imposing the condition was the same as the date of the letter informing his client of it. In the judgment of Gavan Duffy P., at p. 11 there is a strong suggestion that the company should have relied on this misleading aspect. However, they chose to act otherwise and lodged a further application for “… permission to build upon the identical plans which had supported their first application”. The Court held that the company “had no right to make … a second application for a special permission to build upon the identical plans which had supported their first application, and that the defendants and the Minister were right in declining an application and an appeal which did not lie…” on the basis that the application had already been determined and was res judicata.
55. The factual differences between that case and the present are obvious. Not only was Ashbourne entitled to make the 1997 application for permission and retention, it was actually constrained to do so by the attitude and actions of the County Council. Ashbourne attempted to persuade the Council that there was “no material change in the overall effect of the building” by reason of the variations between the earlier permission and the development as completed. The Council, however, as is stated at p. 12 of the Board’s written submissions, took the “view that the development as constructed constituted a material breach of the planning permission and required a retention application”. Indeed, the County Council served warning notices under the Act of 1976 on the applicant in February, 1997. It is thus quite clear that the County Council did not regard a development for which permission had been granted in 1993 and that for which retention and other permissions were sought in 1997 as identical or near identical or as differing only in trivial or unimportant respects from that for which permission had been granted.
56. Moreover, the Board did not take the view that the issue of the access conditions had already been determined in a binding manner. On the contrary, they considered the question on the merits and their inspector conducted a site inspection on the 1st October, 1997. Portion of his report has been quoted earlier in this judgment. His recommendation following the site inspection was that condition 1 (providing for general public access) and condition 3 (providing for charges) be omitted and that condition 2 (providing for provision of a gravel path and picnic area) and condition 8 (providing for proposals in relation to the castle) should be retained.
57. In light of the view which I have taken on the vires issue, I have not found it necessary to discuss whether the Board, on the facts, were entitled to depart from the inspector’s recommendation. The Board contended, on that point, that there was ample material in the inspector’s report to justify the conclusion at which they arrived, and that they were not bound by his recommendations. For the purpose of the res judicata argument, however, what is significant is that the inspector was sent to make an inspection and to formulate recommendations and that his report and recommendations were then considered on the merits. Arising from this, somewhat differently phrased conditions emerged as compared with those of 1993. This is not surprising since much of the material in the inspector’s report was new. Most significantly, the golf course development had not actually taken place in 1993: the inspector observed golf being played in 1997 and based some of his recommendations on what he saw.
58. If the 1993 decision was in all respect a res judicata it must be regarded as binding on both parties. In Athlone Woollen Mills, the appellate authority, the Minister, simply refused to entertain the second application on the basis that he and the local authority were bound by the result of the first. That is not what happened here, and if the Board’s present contention is right then the whole elaborate procedure on which it embarked was redundant. The reality is neither side regarded the question of the conditions as res judicata, and I believe that they were right in this.
59. One of the later cases on which the appellants relied, The State (Kenny and Hussey) v. An Bord Pleanála (High Court unreported Carroll J. 23rd February, 1984): Supreme Court (unreported 20th December, 1984) illustrates the fallacy of the Board’s position. In that case, Carroll J. accepted, on the authority of Athlone Woollen Mills that res judicata, with consequent estoppel, could arise from a planning decision. However, she declined to hold that this estopped the Board from granting permission for a single storey dwellinghouse in a particular location on the basis that it had previously refused permission for another single storey dwellinghouse there. The learned judge said “But I am not satisfied that the order of the 25th February, 1982 concerned the same matter as the order of the 20th May, 1983… I could not hold that the refusal of permission for a particular single storey house on the 25th February, 1982 was a refusal covering all single storey houses”.
On appeal, the judgment of this Court was given by McCarthy J. He said:-
“The learned trial judge expressed her opinion that the principle of res judicata can be applied to a decision of the Board citing with approval the views of Gavan Duffy P. in [Athlone Woollen Mills]. On the facts she rejected the application of the principle so as to benefit the prosecutors. In my view, she was correct in that conclusion. I do not find it necessary to express a view as to whether an application of res judicata in respect of such decision [arises] although I find it difficult to see how a planning authority can be permitted to come to a new or different view when circumstances do not change”.
60. I agree with the judgment of McCarthy J. and would venture to gloss it by saying that a decision of a planning authority is capable of giving rise to a res judicata, but that not every decision will do so. For example, the earlier decision of the Board here that there were no public rights of access to the lands prior to the commencement of the development is a decision on a mixed question of fact and law as it existed at a particular time. It was taken after the matter had been the subject of submissions by those interested in it and taken by the Board as an impartial arbiter. That is not what happened on the decision to grant planning permission in 1993: the question of vires to require public access was never raised or discussed, and a point not argued is a point not decided. The condition was imposed by the County Council and was not the subject of appeal. I cannot see how the mere fact that the County Council decided to impose the condition without any inter partes discussion of their power to do so can be said to give rise to a res judicata, or an omission to appeal their order to confirm it. Certain observations quoted in the next section of this judgment from Professor Scannell’s book indicate the unwisdom of relying for any purpose on an omission to appeal a condition.
61. The case most heavily relied upon by the Board on res judicata was the decision of the House of Lords in Thrasyvoulou v. The Secretary of State for the Environment and Ors. [1990] 2 AC 273. There, a building owner appealed against enforcement notices, which alleged that there had been a material change of use of his buildings, in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the buildings were in hotel use. It was common case that the use of the buildings did not change between 1982 and 1985. Nevertheless, in the latter year the planning authority issued further enforcement notices alleging that there had been a change of use from hotel to hostel. In those circumstances it was held that the unappealed inspector’s certification of 1982, and the concession that there had been no change of use between 1982 and 1985, gave rise to a res judicata against the planning authority. Lord Bridge said, at p. 289:-
“In relation to adjudications subject to a comprehensive
self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions”.
62. I have no difficulty with the proposition thus stated, but I do not think it is of relevance to the present case. The issue that was res judicata in that case was the established use of the buildings as a hotel on a particular date in 1982. Obviously, that user could have changed between 1982 and 1985, but it was specially conceded that there had in fact been no change. The matter had been fully discussed in 1982 and the inspector had himself seen the actual use of the premises. The planning authority had been involved in the dispute as a party or quasi-party, not as arbiter.
63. I conclude that Ashbourne is not estopped per rem judicatam from challenging the vires to impose the disputed conditions.
Discretionary aspects.
64. In the course of his judgment in this case, the learned trial judge observed that judicial review was a discretionary remedy. He continued:-
“The fact that the disputed conditions largely consist of facilities on offer from the Applicant from 1992 until 1997 and the failure of the Applicant to challenge the imposition of conditions first imposed in 1993 are matters which strongly suggest the Court should not intervene unless a very high threshold is crossed in this case”.
65. The learned trial judge cited with approval portion of the judgment of Lloyd L.J. in City of Bradford Metropolitan Council v. Secretary of State for the Environment [1986] JPL 598 at p. 599:-
“The fact that the Applicant had suggested a condition or consented to its terms was, of course, likely to be powerful evidence that the condition was not unreasonable on the facts, since, as in the case of any commercial transaction, the parties were usually the best judges of what was reasonable. So he did not think there was likely to be any great rush of cases in which the developer obtained planning permission by consenting to a condition, and then appealed successfully against the imposition of a condition to the Secretary of State on the grounds that it was manifestly unreasonable. A successful appeal in such circumstances was likely to be rare. But he did not think it could be ruled out as a matter of law”.
66. Despite this, the learned trial judge did not hold that Ashbourne were in any way precluded from seeking relief or that they should be refused relief in the discretion of the Court.
67. The Board appeals this decision, emphasising that “the argument put to [the learned trial judge] by the respondents had been not merely a delay argument or a time point but an argument based on the acquiescence of Ashbourne to the imposition of these conditions over what in planning terms was a very considerable period of time”.
68. On the basis of this acquiescence, the Board says, Ashbourne should be denied relief in the discretion of the Court, or should be regarded as estopped from seeking relief in relation to the disputed conditions.
69. Ashbourne joined issue vigorously with this suggestion. They stoutly maintained that the conditions were different to those originally imposed, that this was their first opportunity to challenge the actual conditions attached to the planning permission, and stated that they were not at all opposed to public access but it would have to be public access at their discretion: this arose from the nature of the golf course development, in terms both of public safety and of commercial viability.
70. I do not find it necessary to go into the factual dispute between the parties just summarised. I take as a starting point that the public access conditions have been found to be ultra vires the Board. In Greendale Building Company v. Dublin County Council [1977] IR 256, Henchy J. giving the judgment of this Court said:-
“The general rule is that a plea of estoppel of any kind cannot prevail as an answer to a well-founded claim that something done by a public body in breach of a statutory duty or limitation of function is ultra vires”.
71. In that case, a local authority had served a notice to treat on the company. This action presumed the validity of a previously made compulsory purchase order: the order was challenged by a third party and did not become operative for more than two years. On the failure of the challenge, the local authority served a second notice to treat. The Company was keen to set up the first notice, because the value of the land was greater at the date of its service than at the later date. Accordingly, it contended that the local authority was estopped by the service of the first notice and by attendance at an arbitration consequent on the first notice, from setting up the validity of the second notice. This contention was rejected in the passage quoted above. It is, however, premised on the assumption that it is a substantive decision (and not some incidental matter of little materiality) that is ultra vires. That much is specifically stated in the part of the judgment of Henchy J. immediately following the passage quoted above. I would add that an intermediate situation may arise in some cases. If the defect in vires related to something more marginal than the essence of the action which is impugned – for example its scale or extent rather than its nature – there may be greater scope for the operation of estoppel. I do not intend in this judgment to address that situation, which must await a case where it is specifically raised. The defect in vires in this case is a radical one, going to the essence of the conditions which are challenged.
72. As a result of my findings on the vires question, this is a case of
“a well-founded claim that something done by a public body in breach of a … limitation of function is ultra vires”.
I am of the opinion that the specific case of planning conditions which are ultra vires furnish a good example of the principle underlying the rule so pithily stated by Henchy J.
Aspects of planning conditions.
73. The statutory source of the power to impose conditions on planning permissions has been set out in an earlier section of this judgment. I now wish to refer to certain practical aspects of the imposition of such conditions. As it happens, the focus of my concerns has been perfectly expressed in a leading text book on the subject. In Environmental and Planning Law in Ireland (Roundhall Press, Dublin, 1995) Professor Yvonne Scannell says at pp. 205-206:-
“It should not be assumed, as it sometimes is, that the wide discretion given to planning authorities to attach conditions under section 26(1) gives them carte blanche to exact benefits in cash or in kind from the developer in order to reflect the profit which the planning permission confers on him or to further some socially desirable objective promoted by the planning authority”.
74. Having referred to a number of authorities, the learned author continues as follows:-
“Of course, in many cases, developers ‘agree’ to planning gain and do not appeal ultra vires conditions requiring them to provide facilities or services which were not necessitated by or which did not facilitate their development. But there have been many instances when developers have been pressurised by conditions into conferring benefits on local authorities or local communities which would almost certainly be declared ultra vires if the developers had the courage, finances or time to challenge them in the courts”.
75. Two things, in particular, underlie the state of affairs summarised by Professor Scannell in the last paragraph. The first is that a local authority, like a court of limited jurisdiction or other decision-making bodies, may be concerned with matters which are hugely important to persons who come before them. In such circumstances those who must appear before or apply to such a tribunal may be prepared to offer or agree to payments or other conditions which would be wholly outside the tribunal’s jurisdiction to impose.
76. Secondly, if such a body accepts what is offered or takes advantage of the acquiescence of a person before it in conditions which it could not impose, that fact will become known to professional people in the relevant area. They, in turn, seeing that such offers or acquiescence had produced a successful outcome in previous cases, will advise clients with new business to consider similar offers or acquiescence. If this process continued, it may lead to the situation in which a body’s apparent jurisdiction, conferred by law, is only a very imperfect guide to its actual practice. Only an insider or a shrewdly advised person would know the true position and only a wealthy applicant could take advantage of it.
77. For example, in R v. Bowman [1898] 1 QB 663, licensing justices granted a liquor licence on condition, inter alia, that the applicant should pay Stg. £1,000 (then an enormous sum) “in reduction of the rates”. This was quashed by a divisional court of Queen’s Bench, Wills J. saying:-
“If the attachment of such a condition were allowed to pass without objection there would soon grow up a system of putting licences up to auction – a system which would be eminently mischievous and which would open the door to the gravest abuses”.
78. The significance of this case is that, even if the licensee were perfectly willing to pay Stg. £1,000 to the public purse as a condition of his licence, and even if he agreed in solemn form to do so, a condition to that effect would still be objectionable. Firstly, it would mean that an applicant for a licence who was well provided financially would be at an advantage as against one who had no surplus after he had bought the premises and applied for the licence. Secondly it would involve a serious absence of transparency in the licensing process: the real requirements for a licence would not be those laid down in the publicly available legislation but those on which the licensor and a wealthy applicant might agree after a process not unlike a form of auction. Thirdly, if such a practice were permitted it would involve the licensing authority or similar bodies using a statutory power to exact a form of payment in cash or kind which the legislature did not envisage.
79. A somewhat similar situation arose in City of Bradford Metropolitan Council v. Secretary of State for the Environment and McClean Homes Northern Limited [1986] JPL 598. There, a planning permission for a residential development incorporated a condition that the developer widen an existing road by one metre and perform associated remedial works. The road in question was in the front of the development and extended beyond it to a junction. The Secretary of State, exercising an appellate function, held that the condition was ultra vires in so far as it related to the land not owned or controlled by the developers. Furthermore, it offended a circular issued by the Secretary of State (para. 63 of Circular 1/85). The Council appealed to the High Court without success and thence to the Court of Appeal. There, Lloyd L.J. was reported as saying:-
“It had usually been regarded as axiomatic that planning consent cannot be bought or sold. As a broad general proposition, that must be true. However [counsel for the Secretary of State], states the principle more narrowly, when applied to the facts of the present case. He asks us to say first, that a planning condition which requires the developer to carry out or fund a public function of a Planning Authority as the price of getting that planning permission is always unlawful and, secondly, that the degree of acquiescence by the developer in the condition so imposed was wholly irrelevant”.
80. Some of the discussion in the Court of Appeal centred on whether the substance of the condition would have been lawful if incorporated as a statutory agreement under the English planning code. After a discussion of both Hall v. Shoreham and Newbury District Council, both cited above, it was held:-
“If the proposed condition is manifestly unreasonable, then it was beyond the powers of the Planning Authority to impose it; and if it was beyond the powers of the Planning Authority to impose the condition, then it is beyond their powers to agree to impose it even if the developer consents…. If the condition is manifestly unreasonable the willingness of the developer is irrelevant. Vires cannot be conferred by consent” . (Emphasis in original)
81. There then follows the passage cited by the learned trial judge, and quoted above, from the Bradford case. The report then continues:-
“For the analogy with an ordinary commercial transaction is not complete. The ‘parties’ to a planning application are not in the same position as the parties to a commercial contract. For in addition to the interests of the ‘parties’, there is the public interest in securing the fair imposition of planning control as between one developer and another” [Lloyd L.J. then cited R v. Bowman above].
He concluded:-
“So there is a public interest as well as the interests of the
‘parties’ “.
82. As these cases and another yet to be cited show, not merely will an applicant for a licence or permission acquiesce, in some circumstances, in a void condition; he may even suggest it. If he knows, or thinks he knows, that the authority which holds his fate in his hands has some particular concern, preference or project, he may offer to fund it in its entirety even if it is barely related, or wholly unrelated, to the development he proposes. It may be quite unnecessary for the authority formally to ask for anything: the merest hint about their wishes or concerns, perhaps in quite informal circumstances, may be sufficient. This tends to discriminate in favour of the wealthier, as opposed to the poorer developer, and in favour of the well connected one rather than one who relies on the ostensible criteria.
83. The second major point which must be borne in mind in dealing with conditions of this sort is that the conditions will affect not only the developer alleged to have proposed them or acquiesced in them but anyone subsequently taking the land.
84. In the United Kingdom, there was a legislative and a ministerial reaction to the Hall, Newbury and Bradford cases. The Department of the Environment published a circular in 1991 saying that “Planning obligations should not be used to extract from developers payments in cash or in kind for purposes that were not directly related to the development proposed but were sought as the price of planning permission”. There was also a statutory initiative in the form of s.106 of the Town and Country Planning Act, 1990, as amended. This permitted a person “interested” in land to reach an agreement with the planning authority restricting its development in any specified way, or requiring specified activities to be carried out on the land, or requiring it to be used in a particular way. This, it is thought, reflected the fact that the statutory power to impose conditions on a planning permission, though broadly couched, had long been held not to be so broad as it seemed. The Act of 1990 raised the question as to whether the same rules applied to planning obligations, as the agreements under s.106 are statutorily called.
85. This question and others were discussed in Tesco Stores Limited v. The Secretary of State for the Environment [1995] 2 All ER 636. Three huge companies, two of which later became involved in litigation, wanted to build a superstore on their respective sites on the outskirts of a town called Witney, Oxfordshire. Tesco, unlike its surviving rival, was prepared to pay six and a half million pounds, being the price of a link road. The inspector decided in favour of Tesco’s plan, but the Minister on appeal decided in favour of its rival (Sainsburys). Tesco then complained that the Minister had failed to give due weight to their offer to fund the road.
86. For the purpose of the present case, the decision of the House of Lords is of limited direct value because it decided that the Minister had not failed to consider the funding proposal. This leaves one to speculate whether in failing to avail of it he had regard to the terms of his circular about planning obligations not being bought and sold, or having the appearance of being so. But the speech of Lord Hoffmann, where he reviews the earlier cases in depth and explains how the constraints imposed by Hall led to the development of planning obligations, not subject to the same processes of appeal as planning conditions, casts a useful if oblique light on the position of ultra vires conditions. He concluded that planning obligations could be used, quite legitimately, to cause the developer to contribute to the external costs of his development, thereby achieving what would be unobtainable by condition in view of the line of authority whose immediate starting point is Hall. He said at
p. 654:-
“Parliament has therefore encouraged local planning authorities to enter into agreements by which developers will pay for infrastructure and other facilities which would otherwise have to be provided at the public expense. These policies reflect a shift in government attitudes to the respective responsibilities of the public and private sectors. While rejecting the politics of using planning control to extract benefits for the community at large, the government has accepted the view that market forces are distorted if commercial developments are not required to bear their own external costs”.
87. It thus appears that the neighbouring jurisdiction has evolved a via media between planning conditions, with their requirement to relate to the permissions sought in a reasonably direct fashion, and the less directly related statutory agreements. These, however, are still envisaged as relating to the “external costs” of the development. Not even on this latter criterion could a condition of public access qualify. Nor, as we have seen, was legitimate public access to the Old Head of Kinsale a cost or a casualty of the exempt golf course development.
Conclusion on discretionary factors.
88. I would not refuse relief in the exercise of discretion in the circumstances of the present case. First, the impugned conditions are ultra vires and against that most radical form of invalidity estoppel, acquiescence or consent does not avail. It is just that this should be so, in the case of a condition, which however invalid will run with the land. Secondly, it is particularly important that this principle be maintained in the public interest, so as to assert the principle of fairness as between one applicant for an identical or analogous permission and another, and so as to safeguard the integrity and transparency of the administration of the planning code.
Parolen Ltd. v. Drogheda Corporation
[2003] IEHC 8 (
JUDGMENT of Finnegan P. delivered on the 14th day of May 2003
The principal relief sought by the Applicant on this application for leave to apply by way of Judicial Review is an order of certiorari quashing the decision of the Respondent dated 12th August 2002 reference 01/161 to grant to the Notice Party planning permission for the development of lands known as the Lakelands Dairy site at Marsh Road, Drogheda for a mixed use development, that is a mixed retail and commercial development.
The Notice Party’s lands are situated to the south of the river Boyne. On the 27th November 2001 the Applicant obtained planning permission to develop a shopping centre and mixed use development on its site at Laurence Street, Drogheda to the north of the river Boyne and which development it is now carrying out. The
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Applicant has been diligent to ensure that there should be no irregularity attending the prerequisites for development of its site by the Notice Party and is not to be criticised for this. The Applicant successfully challenged by way of Judicial Review a rezoning of the Notice Party’s lands. Again the Applicant participated fully in the planning process in relation to the application with which I am concerned. The present application for Judicial Review focuses on two aspects of the Respondent’s decision –
1. Included in the application is a public road, Graves Lane, in respect of which the Applicant claims the Notice Party did not possess any or any sufficient interest to enable it to apply for planning permission.
2. The Respondent’s decision was to grant planning permission subject to a number of conditions. Condition 2 provides as follows –
“2. Prior to commencement of development, the developer shall seek and obtain all relevant statutory permissions, including planning permission, to construct a footbridge over the river Boyne, linking the subject development and Drogheda established/traditional town centre area, as schematically indicated on submission 05/03/02, et al. The said footbridge shall form an integral component of the subject development permitted under 01/161 and shall be completed prior to occupation and operation of the subject development.
Reason: in the interest of proper planning and sustainable development and to provide appropriate linkages with the traditional town centre”.
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The Applicant claims that the condition is ultra vires the Respondent and not capable of being severed and that accordingly the decision itself is ultra vires. The condition it is claimed is ultra vires for the following reasons –
(a) The construction of a pedestrian footbridge is not reasonably related to the subject matter of the planning application.
(b) The land upon which the footbridge would be situate is not within the lands the subject matter of the application and the Notice Party does not own or possess sufficient control over the lands to comply with the condition.
(c) There is not in the Respondent any power to attach to a planning permission a condition requiring a further planning permission to be obtained.
(d) The decision amounts to a partial decision on a larger development part of which larger development was not part of the application.
As to the first Reason the position is as follows. Within the site of the proposed development is a public road, Graves Lane, which runs from the southern bank of the Boyne river to the southern side of the Notice Party’s site. The Notice Party’s application for permission was made on the 9tn August 2001. Prior to that on the 25th July 2001 the Notice Party sought closure of Graves Lane under section 12 of the Roads Act 1993. Also on that date the Notice Party wrote to the Respondent in the following terms –
“You will note that the application includes for the development of lands that are outside the control of the applicant and in the ownership/control of Drogheda
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Corporation … In this regard, we seek the permission of Drogheda Corporation for the inclusion of these lands (outlined in blue on the attached map) within the application boundary for the purpose of the making of a planning application “.
The letter was headed “Edward Holdings Limited” and it is clear that the application was made on behalf of that company. By letter dated the 3rd August 2001 the Respondent replied in the following terms –
“The Corporation has no objection to Edward Holdings Limited including property in the ownership/control of the Corporation at Marsh Road/South Quay, Drogheda in their application for permission under the Planning and Development Acts to develop the former Lakelands Dairy site at Marsh Road”.
The application for planning permission was made in the name of Talebury Properties Limited, the Notice Party, and not Edward Holdings Limited: however in answer to an enquiry as to ownership in the planning application form the Notice Party disclosed the interest of Drogheda Corporation. Clearly there was no confusion in the mind of the Respondent – in a replying Affidavit sworn on behalf of the Respondent by Rachel Kenny on the 31st October 2002 it is deposed that the Notice Party is a wholly owned subsidiary of Edward Holdings Limited and that the Respondent had full knowledge of the Notice Party’s proposed development and the effect the said development would have on the lands in the ownership/control of the Respondent.
The Applicants rely upon the decision of the Supreme Court in Frescati Estates Limited v Walker 1975 I.R. 177. Henchy J. at p.190 said –
“To sum up, while the intention of the Act is that persons with no legal interest (such as would be purchasers) may apply, for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would
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be exceeded if the word “applicant” in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interest of the common good, for proper planning and development.
Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development, as relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person entitled) and the person entitled to enable the applicant be treated, for practical purposes, as a person entitled”.
In Keane & Another v An Bord Pleanala & Others 1998 2 ILRM 241 Keane J. considered the above dicta and regarded them as obiter and went on to say at pp 248 – 249
“It may be that the ratio of this decision is to be found in the first paragraph of this passage and that the second paragraph to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development should properly be regarded as obiter. One could readily envisage circumstances in which an application could be made by some other person which could not possibly be described as either “unnecessary ” or “vexatious “. In the context of the present case however it is sufficient to say that the principle apparently
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laid down in Frescati Estates Limited v Walker must be strictly confined to cases in which the application is not made by or with the approval of a person who has a legal estate or interest in the relevant property sufficient to enable him to carry out the proposed development “.
In the circumstances of the present case on the basis of the correspondence which passed between Edward Holdings Limited and the Respondent and the terms of the planning application form and the circumstance that the Notice Party is a wholly owned subsidiary of Edward Holdings Limited and having regard to the Affidavit of Rachel Kenny to which I have referred I am satisfied adopting the approach of the Supreme Court in Keane & Another v An Bord Pleanala & Others that the Notice Party had locus standi to make the application. A substantial ground is not disclosed here.
As to the Applicant’s second Reason it is necessary first of all to look at the provisions of the planning code dealing with conditions. The Local Government (Planning and Development) Act 1963 section 26 provides as follows –
“26(1) Where –
(a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and
(b) any requirement relating to the application of or made under such regulations are complied with
the authority may decide to grant the permission or approval subject to or without conditions or to refuse it; and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development
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of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in sub-section (2) of this section “.
Sub-section 2 of section 26 provides that without prejudice to the generality of sub-section (1) conditions may include all or any of the conditions therein set out.
The Applicant firstly contends that the construction of the footbridge is not reasonably related to the subject matter of the planning application. The Local Government (Planning and Development) Act 1963 section 26 restricts the Planning Authority in dealing with an application to considering the proper planning and development of the area of the authority. The extent to which the Respondent considered the proper planning and development of its area is clear from the voluminous exhibits to the Affidavit grounding the application sworn by Anne Mulcrone on behalf of the Applicants on the 9th October 2002. In particular I have had regard to exhibit A.M. 12 to that Affidavit the report of Mr. Declan Conlon, Executive Planner of the Respondent. The application for planning permission at paragraph 2.4 proposed at a later date a link bridge between the site and the north of the town of Drogheda. The Respondent issued a request for further information on the 9th January 2002 which included the following request in the Schedule at 2. –
“2. Further to the request for further information above, the planning authority considers the provision of a pedestrian link between the subject site and the existing town centre to be critical. Such a link appears to form a key element of your argument in support of the proposal (as per your application submission in respect of
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the RIS). In this regard you are requested to submit comprehensive and achievable proposals for a pedestrian bridge between the subject site and the existing town centre on the north side of the river”.
RIS refers to the Retail Impact Statement pursuant to the Retail Planning Guidelines adopted December 2000. The Notice Party furnished a detailed reply to the request in the course of which it acknowledged and recognised the significance of a pedestrian bridge link between the site and the north bank of the river and undertook to provide the required bridge but suggested that as the time required to do engineering testing, design the bridge, engineer it and liaise with various relevant bodies would cause unreasonable delay that a set of parameters for an achievable proposal which they submitted be considered and that the grant of permission should be subject to a condition that the approval of a final design for the bridge be subject to a separate planning application. Having considered the documentation exhibited in the Applicant’s Grounding Affidavit I am satisfied that the condition is directed to the proper planning and development of the area of the Respondent. It is to a very significant extent relevant to the subject matter of the planning application which the Respondent was considering. A substantial ground is not disclosed here.
Next the Applicant contends that the land upon which the footbridge would be situate is not within the lands the subject matter of the application and the Notice Party does not own or possess sufficient control over the lands to comply with the condition. As to ownership of the lands I again have regard to the decision of the Supreme Court in Keane & Another and An Bord Pleanala & Others and the portions of the judgment which I have already quoted. On an application for planning permission for the erection of the pedestrian footbridge it could not be said that the application was
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either “unnecessary” or “vexatious”. The Notice Party is the owner of the lands to the south of the river. To the north of the river is a public highway and in all the circumstances disclosed in the documents exhibited in the Applicant’s Grounding Affidavit and which disclose that the Respondent considered the construction of such a pedestrian footbridge desirable it would be reasonable for the Notice Party to assume that accommodation could be reached with the Respondent in respect of any lands to the north of the river under their control. While mention is made of a foreshore licence there is no evidence before me that the proposal for a footbridge involves the foreshore or indeed the interest of any person other than the Notice Party and the Respondent. In all the circumstances the Notice Party is entitled to expect that the necessary permissions will be forthcoming and it cannot be said that the application for planning permission is either unnecessary or vexatious. In these circumstances for the purposes of the present application I am satisfied that the Notice Party has locus standi to make an application for planning permission in respect of the proposed pedestrian footbridge. This is not a substantial ground.
The next Reason given by the Applicant is that the footbridge will be constructed upon lands not the subject matter of the application. In this regard the Applicant relies upon the decision of the Supreme Court in The State (FPH Properties S.A.) v An Bord Pleanala 1987 I.R. 698. In that case An Bord Pleanala imposed a condition requiring the applicant for planning permission to carry out works to Furry Park House which was on land the property of the applicant and which adjoined the land the subject matter of the application. It was held by the Supreme Court having regard to the provisions of the Local Government (Planning and Development) Act 1963
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section 26(2)(a) that the carrying out of such works was not as required by that provision expedient for the purposes of or in connection with the development authorised by the permission. In relation to section 26(2)(b) it was there held that this must refer to works on the lands the subject of the application for permission. In relation to the section 26(1) McCarthy J. said –
“Mr. Brady, for the Respondents, falls back, so to speak, on the “catch all ” provision of sub-section (1) arguing that sub-section (2) is merely a check list. I accept this general proposition, but it does not seem to me to advance this case any further. In my view, to enable the relevant authority to impose a condition of the like created by condition 1. would require expression in the clearest terms” .
While this statement is not without doubt I understand McCarthy J. to construe section 26 as limiting the power to impose conditions to conditions in respect of land the subject matter of the application (sub-section (2)(b)) or to lands in the ownership of the Applicant adjoining the lands the subject matter of the application where the condition is expedient for the purposes of or in connection with the authorised development (sub-section (2)(a))and sub-section (1) as not being sufficiently wide to empower the authority to attach a condition affecting land outside the application requiring works to be carried out. However as against this in the present case the Notice Party offered to construct the pedestrian footbridge and has submitted to the condition. While it did appeal the decision of the Respondent to An Bord Pleanala I do not know the nature of that appeal and the appeal has in any event been withdrawn. It is only the Notice Party who can be said to be adversely affected by condition 2. Insofar as the Applicant or the public at large are concerned or the Planning Authority are concerned before the pedestrian footbridge can be constructed the Notice Party
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must pass through the full rigours of the planning process and the planning permission may or may not be granted.
Again in Grampion Regional Council v Aberdeen District Council 1983 47 P and CR 633 the House of Lords distinguished a negative condition of the type of condition 2. and a positive condition upon the basis that the former is enforceable while the latter is not. There is as yet no decision to the like effect in this jurisdiction.
Having carefully considered the legal submissions on behalf of the Applicant, the Respondent and the Notice Party I find that in this regard the application discloses substantial grounds the issue being as follows: is condition 2 permissible under the Local Government (Planning and Development) Act 1963 section 26(1) and if not is the same severable.
With regard to the remaining two matters – power to attach to a planning permission the condition requiring a further planning permission to be obtained and the power to make a partial decision – these can be considered together. It is quite clear that the condition relates to the proper planning and development of the area of the Respondent. Accepting the dicta of McCarthy J. in The State (FPH Properties SA) v An Bord Pleanala as to the manner in which the planning code should be construed if it is found at the hearing of this matter that a condition requiring the construction of the footbridge is valid under section 26(1) of the 1963 Act I can find nothing in section 26(1) which would prevent a planning authority imposing a requirement that further planning permission be obtained in respect thereof prior to the development authorised by the planning permission being carried out. Such a condition facilitates
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the involvement of those affected by the proposed development and the general public to participate in the planning process: if they successfully oppose the granting of the further planning permission then the conditional permission will be ineffective. Again the obligation on the Planning Authority is to have regard to the proper planning and development of the area of the Authority and the condition such as that sought to be impugned seems to me ideally suited to achieving this subject only to the same being held valid on the determination of the issue at 2(b) above. The Applicant has failed to satisfy me that this Reason represents a substantial ground.
Accordingly I grant leave on the sole ground as follows –
The said decision of the Respondent is ultra vires in that condition 2. attached thereto is not a permissible condition pursuant to the Local Government (Planning and Development) Act 1963 section 26(1) and the said condition is not severable.
I make this order notwithstanding the existence of a right of appeal to An Bord Pleanala of which the Applicant has availed and which appeal is pending before An Bord Pleanala.
As to the Respondent’s motion to strike out the application on the grounds that the same is frivolous and vexatious and/or premature I refuse that relief having regard to what I have found above.
Construction Industry Federation v. Dublin City Council
[2004] IEHC 37 (4 March 2004)
Judgment of Mr. Justice Gilligan delivered on the 4th March, 2004.
By Order of Kearns J. on the 18th December, 2003, the applicant herein was granted leave to apply by way of an application for judicial review for the following reliefs:
1. An order of certiorari, by way of an application for judicial review, quashing the decision made by the respondent on 1st December, 2003,
(the “decision”) to make a development contribution scheme pursuant to
s. 48 of the Planning and Development Act, 2000 (the “scheme”);
2. A declaration, by way of an application for judicial review, that the respondent in purporting to make the decision acted ultra vires and/or without or in excess of jurisdiction;
3. A declaration, by way of an application for judicial review, that the decision is null and void and of no legal effect;
4. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the said scheme;
(a) fails to state adequately or at all the public infrastructure and facilities provided or to be provided by the planning authority in respect of which it is proposed to require payment in accordance with the terms of the scheme;
(b) fails to set out adequately or at all the basis for the determination of a contribution under the scheme as required by s. 48 (2) of the Planning and Development Act, 2000;
(c) fails to provide any or any adequate information on the basis of which the respondent under s. 48(2)(c) of the Planning and Development Act, 2000, might reasonably require the payment, in addition to a contribution under the said scheme, of a special contribution in respect of “specific exceptional costs not covered by a scheme” incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development or on the basis of which An Bord Pleanála, on appeal, or any other person or body might reasonably consider or determine that such “specific exceptional costs” were or were not covered by the said scheme;
(d) fails to state adequately or at all the basis for determining the contributions in respect of public infrastructure and facilities to be paid in accordance with the terms of the said scheme as required by
s. 48 (3) of the Planning and Development Act, 2000;
(e) fails to identify adequately or at all the nature and extent of the public infrastructure and facilities included in the said scheme, whether they are existing or proposed, the cost of the same (actual or estimated), the period of time during which they have been or will be provided, or in any way provide adequate information on the basis of which a person can know in respect of what public infrastructure and facilities a contribution is being made;
(f) fails to set out in the said scheme any or any adequate information on the actual or actual estimated cost of providing the infrastructure or facilities included in the scheme;
(g) fails to set out in the said scheme any or any adequate information as to the basis on which the benefit accruing to existing development is purported to be excluded;
(h) fails to set out the rationale for estimating the anticipated volume of development in the future, an essential calculation in assessing the appropriate level of contribution;
(i) fails to set out a sound economic basis for the decision by the respondent to increase the contributions proposed in the draft scheme;
An order was made during the course of the hearing for an amendment in the following terms:
(j) failed to set out adequately or at all in the said scheme the manner in which other sources of funding of public infrastructure and facilities were dealt with in calculating the basis for the determination of contributions;
5. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in making the said scheme in circumstances where the respondent failed to have regard to the actual estimated cost of providing the classes of public infrastructure and facilities which are included or purported to be included in the said scheme;
6. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the respondent, in determining. the basis for contributions under the said scheme, failed to exclude any benefit accruing in respect of existing development as a result of the provision of the public infrastructure and facilities included or purported to be included in the said scheme as required by s. 48 (3) of the Planning and Development Act, 2000;
7. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the respondent, in purporting to set out or state the basis for contributions under the said scheme, failed to set out or state in any or any adequate manner the basis on which it purported to exclude any benefit accruing in respect of existing development as a result of the provision of the public infrastructure and facilities included or purported to be included in the said scheme as required by s. 48(3) of the Planning and Development Act, 2000;
8. A stay pursuant to Order 84, rule 40(7)(a) of the Rules of the Superior Courts restraining the respondent from implementing the said scheme or otherwise acting upon the said decision pending the determination of the within proceedings;
9. In the alternative, and if necessary, an injunction (including an interim or interlocutory injunction restraining the respondent from implementing the said scheme or otherwise acting upon the said decision pending the determination of the within proceedings
10. An order for discovery on oath of all documents which are or have been in the possession, power or procurement of the respondent and which are relevant to any cause or matter in these proceedings;
11. If necessary, an order pursuant to Order 84, rule 22 of the Rules of the Superior Courts directing that the application for judicial review be made by plenary summons;
12. Liberty to serve such other parties as this Honourable Court may direct;
13. Liberty to file further affidavits;
14. Liberty to apply;
15. Such further or other reliefs as this Honourable Court may direct;
16. The costs of and incidental to these proceedings.
The statement required to ground application for judicial review was subsequently amended by order to include a further relief sought in terms as follows:
17. A declaration by way of an application for judicial review that if the decision is determined to be invalid and or if the scheme is determined to be unlawful the respondent is required to reimburse promptly and without deduction any development contributions paid by any person pursuant to a condition imposed in the decision to grant planning permission or a grant of planning permission in accordance with the said scheme.
Prior to the enactment of s. 48 of the Planning and Development Act, 2000, (hereinafter referred to as s. 48) a planning authority, in deciding to grant permission for development could, under s. 26 (2) of the Local Government (Planning and Development) Act, 1963, (hereinafter referred to as s. 26) make the grant of planning permission subject to conditions requiring financial contributions to be made towards any expenditure incurred or to be incurred by the local authority in respect of works which had or would facilitate the proposed development. In respect of proposed work, such financial contributions were repayable in whole or in part with interest, where the said works were not commenced or completed in full within a specified period, usually seven years. In addition, the amount of such contributions could be the subject of an appeal to An Bord Pleanála.
Under the provisions of s. 48, planning authorities are empowered to draw up a development contribution scheme or schemes and to impose conditions in grants of planning permission requiring payments of contributions in accordance with such schemes. The contributions are to be imposed in respect of public infrastructure and facilities provided or to be provided by the planning authority, generally, in its area, whether or not it is of benefit to the particular development concerned. There is no appeal to An Bord Pleanála in respect of the imposition of such contributions if they are properly calculated in accordance with the scheme and no provision is made for the repayment of contributions.
In addition to these general development contribution schemes provision is made for additional development contributions to be levied in specified circumstances:
a) under s. 48(2)(c) the planning authority may impose special contributions in respect of “specific exceptional costs not covered by a scheme”. In the case of such special contributions there is an appeal to An Bord Pleanála and such contributions may be repayable if the planning authority decides not to proceed with the proposed works or does not commence the works within five years or does not complete them within seven years.
b) under s. 49 of the Planning and Development Act, 2000, (hereinafter referred to as s. 49) a planning authority may make a supplementary development contribution scheme in respect of any public infrastructure project or service provided or carried out by or on behalf of the planning authority, and impose a condition requiring a contribution under that scheme in addition to the general scheme in the grant of any planning permission, if that public infrastructure or project will benefit the development to which the permission relates. There is no appeal to An Bord Pleanála in respect of that imposition of such contributions if they are properly calculated in accordance with the scheme nor are any such contributions repayable in any circumstances. However, pursuant to s. 49(5), a person cannot be required to make a contribution under a supplementary scheme “where the person concerned has made a contribution under s. 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constituted a part.”
Section 48 provides, inter alia, as follows:
“(1) A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities).
(2) (a) Subject to paragraph (c), the basis for the determination of a contribution under subs. (1) shall be set out in a development contribution scheme made under this section, and a planning authority may make one or more schemes in respect of different parts of its functional area.
(b) A scheme may make provision for payment of different contributions in respect of different classes or descriptions of development.
(c) A planning authority may, in addition to the terms of a scheme, require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.
(3) (a) A scheme shall state the basis for determining the contributions to be paid in respect of public infrastructure and facilities, in accordance with the terms of the scheme.
(b) In stating the basis for determining the contributions in accordance with paragraph (a), the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities, except that any benefit which accrues in respect of existing development may not be included in any such determination.
(c) A scheme may allow for the payment of a reduced contribution or no contribution in certain circumstances, in accordance with the provisions of the scheme.”
Under s. 48, in contrast to the position that obtained under s. 26(2), there is no direct relationship between the contribution payable in respect of a particular development and public infrastructure and facilities provided by a planning authority. Development contributions collected under a s. 48 scheme form a general fund to be applied as capital for public infrastructure and facilities within the functional area of the planning authority.
The decision to make a scheme pursuant to s. 48 is reserved to the elected members of the relevant planning authority whereas pursuant to the Act of 1963 contribution conditions were a matter for the manager/executive.
In or about early 2003 the respondent commenced the process of making
a development contribution scheme. Consultants Deloitte & Touche, HKR Chartered Town Planners, and Peter Bacon & Associates, Economic Consultants prepared a report in August, 2003 (hereinafter referred to as the “consultants report”). On the 2nd September, 2003, the respondent published a Draft Development Contribution Scheme. Notice of the publication of the draft scheme was published in national newspapers on the 29th August, 2003. The draft scheme was on public display from the 2nd September, 2003, to the 13th October, 2003, inclusive. Submissions and observations with respect to the draft scheme were accepted up to close of business on the 13th October, 2003.
Pursuant to s. 48(5) a copy of the draft scheme was sent to the Minister for the Environment, Heritage and Local Government and was acknowledged by the Minister on the 2nd September, 2003. On the 15th October a formal reply was received from the Minister (approving the draft scheme).
On the 13th October, 2003, the applicant made a submission in relation to the draft scheme. On the same day, the Irish Home Builders Association, a constituent association of the applicant, also made a submission on the draft scheme.
In or about November, 2003 a report was prepared by the city manager in relation to the submissions and observations received in relation to the draft scheme and this report was subsequently submitted to the members of the respondent for their consideration.
On the 1st December, 2003, the draft scheme and the report of the city manager were considered at a meeting of the elected members of the respondent. A decision was made to approve the scheme subject to three changes. The contribution per residential unit was increased from €10,500 to €11,500, the industrial/commercial levy was increased from €100 per square metre to €110 per square metre and affordable housing was excluded from the scheme.
On the 9th December, 2003, the making of the scheme was published in national newspapers giving the date of the decision of the respondent in respect of the draft scheme and stating the nature of the decision.
The applicant does not attempt in anyway to impugn the constitutionality of the Planning and Development Act, 2000, (hereinafter referred to as the Act of 2000) and in particular s. 48 thereof. The applicant’s contention is that the scheme as brought into being by the respondent on 1st December, 2003, is ultra vires s. 48 of the Planning and Development Act, 2000.
The first issue for determination is the question of the locus standi of the applicant. The respondent contends that the Construction Industry Federation is described as “an unincorporated trade association” and that it does not engage in development or in the making of any applications for planning permission and accordingly will not be liable to pay any development contributions under the scheme. The respondent further contends that the applicant is not as such affected by the scheme and accordingly does not have a “sufficient interest” in the matter to which the application relates.
The applicant contends that a wide range of persons will be affected by the development contribution scheme including members of the applicant association and it is submitted on the applicant’s behalf that the applicant as a representative association had an interest in the lawfulness of the scheme and any development contributions levied thereunder. It is further contended that there is a clear public interest that the applicant should bring the within proceedings and that the issue raised is of considerable public importance. The applicant further contends that it made a submission in relation to the scheme to the respondent, as did one of its constituent members, the Irish Home Builders Association, and these submissions were considered and taken in to account by the respondent in concluding the scheme.
In Cahill v. Sutton [1980] I.R. 269 Henchy J. considered the issue of standing in the following terms:
“The Constitution has given Parliament the sole and exclusive power of making laws. The courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court’s jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.
This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires….
For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision.
However, those examples of possible exception to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule.”
The issue of standing was subsequently examined by the Supreme Court in the context of planning in Lancefort Limited v. An Bord Pleanala [1999] 2 IR 270 wherein Keane J. stated:
“The authorities reflect a tension between two principles which the courts have sought to uphold: ensuring, on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the courts because of the absence of indisputably qualified objectors and, on the other hand, that the critically important remedies provided by the law in these areas are not abused … The need for a reasonably generous approach to the question of standing is particularly obvious in cases where the challenges relates to an enactment of the Oireachtas or an act of the executive which is of such nature as to affect all citizens equally … But it is also the case that a severely restrictive approach to locus standi where the decision of a public body is challenged would defeat the public interest in ensuring that such bodies obey the law.”
He also emphasised that:
“While it is thus clear that a person initiating such a challenge by way of judicial review must at the least have what the law regards as a ‘sufficient interest’ in the subject matter of the impugned decision, whether he has such an interest can only be determined by reference to the circumstances of the particular case. . .”
The applicant is an unincorporated association representing the interest of parties involved in the construction industry. I am satisfied that its constituent members are clearly persons who will be affected by the operation of the development contribution scheme as brought into operation pursuant to section 48.
I take the view, following the dicta of Henchy J. in Cahill v. Sutton [1980] I.R. 269 that the impugned provision is directed at or operable against a grouping which goes to make up the constituent members of the applicant federation and I am satisfied that the applicant has a common interest with those affected because it represents those persons involved in the construction industry. I take the view that in the particular circumstances of this case there is a need for a reasonably generous approach to the question of standing and I do not believe, in the interests of justice, that it would be appropriate that I adopt a severely restrictive approach to locus standi in the circumstances of this case where the decision of the respondent is being challenged. Accordingly I find that the applicant has locus standi in this matter.
The applicant contends that it is a well established principle of statutory interpretation that a legislative provision imposing or authorising the imposition of any form of taxation must be strictly construed. The applicant relies on the principle as set out by Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 wherein he states in the course of his judgment:
“. . . if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language.”
In Louth County Council v. Matthews (High Court, Gannon J., 14th April, 1989) the defendant had refused to pay service charges for refuse collection in circumstances where he had not availed of the collection service. One of the questions stated by the District Judge was whether, on a proper construction of s. 3(1) of the Local Government (Planning and Development) Act, 1983, a charge made by a local authority by virtue of s. 2 of that Act was payable by, and recoverable from, a person for whom the service was provided whether or not the person had availed of the service. Having analysed the relevant provisions of the Act of 1983, Gannon J. stated:
“It is notable from a reference to earlier Health Acts and Local Government Acts that the word ‘charge’ can be used with a variety of distinct and different meanings according to the context. Examples which may be found are: the imposition upon an interest in property of a liability to pay money or to satisfy a judgment; the imposition of a liability to pay a tax or levy; the requirement to pay for goods supplied or services rendered, and even the allegation of guilt for the commission of an offence. Having regard to the previous withdrawal by the legislature of the authority to raise money by a levy of a poundage upon the valuation of property I am of opinion that it was not the intention of the legislature to reintroduce this power in the oblique use of words capable in their ordinary use of a different meaning, rather than by expressly conferring a power to impose a levy to meet anticipated expenses …It is my opinion that the Defendant whose domestic refuse has not been cleared by the Plaintiff in the relevant period is not liable to pay the Plaintiff the sums claimed.”
The respondent refers to Howard v. Commissioners of Public Works in Ireland [1994] 1 I.R. 101 wherein Blayney J. in his judgment considered at length the principles of construction applicable to an Act of the Oireachtas and emphasised that the fundamental duty of the court was to give effect to the intention of the Oireachtas as expressed in the words used by it and not to speculate as to what subjectively the intention of the Oireachtas may have been. He cited with approval the following passage from Craies on Statute Law:
“‘A general proposition that it is the duty of the Court to find out the intention of Parliament … cannot by any means be supported’ said Lord Simonds in 1957. Some fifty years before in Saloman v. Saloman & Co Ltd. [[1897] AC 22, 38] Lord Watson had said: “Intention of the legislature” is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.’ After expounding the enactment, it only remains to enforce it,
notwithstanding that it may be a very generally received opinion that it ‘does not produce the effect which the legislature intended’, or ‘might with advantage be modified’. The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.”
In her judgment Denham J., at p. 162, states as follows:
“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction.”
Further at p. 163 of her judgment Denham J. states:
“The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation not legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted.”
The Chief Justice in agreeing with the judgment of Blayney J. at p. 140 made the following observation:
“I am satisfied that it would not be permissible to interpret a statute upon the basis of either speculation, or indeed, even of actual information obtained with regard to the belief of individuals who either drafted the statute or took part as legislatures in its enactment with regard to the question of the appropriate legal principles applicable to matters being dealt with in the statute.”
While I will deal with the appropriate interpretation of the relevant provisions of s. 48 in due course it does appear appropriate that I state that I do not consider that the relevant provisions of s. 48 are either loose or ambiguous and in these circumstances I propose to adopt the rationale of Denham J. in her judgment in Howard v. Commissioners of Public Works in Ireland [1994] 1 I.R. 101 and construe the relevant provisions strictly according to the intention expressed, in the language used, in the legislation and I take the view that the words as used in the statute best declare the intent of the Act. In my view the language of the statute is clear and I must give effect to it, applying the basic meaning of the words as used.
The applicant contends that it was not afforded an adequate opportunity to make submissions in relation to the draft scheme because of the paucity of information contained therein. It is alleged that the scheme does not even purport to set out the basis for determining the contributions to be paid but, rather, refers to the consultants’ report. The applicant contends that even if it is permissible to have recourse to the consultants’ report (and this fact is not accepted by the applicant) there still was not enough information available to the applicant and other interested parties to make a proper or full submission or to engage in the consultation process in any meaningful way, and further the draft scheme is not clear.
This argument on the applicant’s behalf leads in to the principal contention that is advanced which is that it is necessary for a development contribution scheme to specify the public infrastructure and facilities under each of the various headings, as set forth in sub-s.17 of s. 48, which have been or are intended to be provided. The applicant contends that it is not sufficient merely to identify classes of infrastructure and facilities to be provided. Reference is made to the “special contribution” as provided for in s. 48(2)(c) whereby a planning authority may in addition to the terms of a scheme require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.
The applicant relies on the evidence of Colm McCarthy, an economic consultant with DKM Economic Consultants Limited. Mr. McCarthy states that the scheme does not contain sufficient detail and information for the members of the respondent, in deciding to make the scheme, to establish and be satisfied that it complies with the requirements of section 48. Mr. McCarthy is of the opinion that deficiencies in the information provided, relating to matters such as the projects to be carried out, the works to be undertaken and the actual estimated costs for such works, are such as to frustrate the public consultation process provided for under section 48.
Mr. McCarthy states that in his opinion the scheme fails to set out the information required by section 48 of the Act. Mr. McCarthy states that it appears to him, as an economist, that the scheme must, inter alia, set out the actual estimated cost of providing the classes of infrastructure and that, in order to comply with this requirement, the scheme should show the actual estimated cost of the various projects that go to make up the public infrastructure and facilities provided or to be provided during the lifetime of the scheme to which the planning authority had regard. He further states that this actual estimated cost should then be reduced to exclude any benefit to existing development. Mr. McCarthy also states that the scheme should show that the scheme itself related to actual costs incurred or to be incurred in specific projects capable of being defined and costed.
Mr. McCarthy states that the scheme does not comply with the requirements as it does not specify the costs associated with particular projects detailed in the scheme. Neither does the scheme provide any description of the works involved in the projects, or the timeframe for commencement or completion of any project. Mr. McCarthy states that it is his opinion this type of information is necessary for the purposes of any meaningful consultation process. Mr. McCarthy also states that the effect of s. 48(2)(c) which provides for the imposition of a special contribution by the planning authority requires that this information be provided in the interests of transparency.
Further, Mr. McCarthy states that the consultants’ report fails to set out and explain the basis for key calculations and assumptions which underpin the scheme, and that therefore it is not possible to determine whether the level of contributions has been correctly calculated in accordance with the requirements of section 48.
The applicant refers to s. 49(5) which provides for the making of supplementary development contribution schemes authorising the imposition of conditions requiring the payment of a contribution in respect of any public infrastructure service or project. Section 49(5) specifically provides that:
“[a] planning authority shall not, pursuant to a condition under subsection (1), require the payment of a contribution in respect of a public infrastructure project or service where the person concerned has made a contribution under section 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constitutes a part.”
The applicant contends that it is clear from the foregoing provisions that a planning authority is not permitted to double charge an applicant in respect of any given item of public infrastructure and facilities but, because the scheme as adopted does not identify clearly and with particularity the public infrastructure and facilities included in it, this may well occur. The applicant goes as far as to make the case that any particular applicant for planning permission may not be aware that he is incurring a double charge and is deprived of a remedy whether by means of an appeal to An Bord Pleanála or by recourse to the High Court. The lack of detail in the scheme as to the nature, extent, and cost of the public infrastructure and facilities included in the scheme means that only the respondent and its advisers are in a position to say what is or is not included. The applicant contends that in order for this scheme to comply with the provisions of s. 48 not only should each individual item of public infrastructure and facilities be identified but also it should be stated whether the particular infrastructure or public facility has been already provided or is intended to be provided and that only the provision of this information would bring about a situation whereby applicants for planning permission will not be double charged where a special contribution situation or a supplementary development contribution were to arise pursuant to s. 48(2)(c) or s. 49 of the Act.
The respondent contends that none of the provisions of s. 48 require, in its terms, a draft scheme or a scheme to specify the individual project which the planning authority intends to fund wholly or partly from money raised under the scheme lest still the level of detail as to cost and timing as is contended for by the applicant herein. The respondent’s principal contention is that there is a requirement in s. 48 of the scheme to set out the basis for the determination of a contribution and that, it is submitted, requires no more and no less than that a person looking at the scheme will be able to determine what development contribution if any will be payable by them in their capacity as an applicant for planning permission in respect of any given development. It is further submitted that as a matter of ordinary language the wording of the statute cannot be construed as importing a requirement to set out in the scheme all of the underlying data and analysis or a requirement to specify individual projects/timings and costings and that if such a requirement was necessary then the provisions of s. 48(3)(b), which provides that “in stating the basis for determining the contribution … the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or are to be provided by any local authority”, would be entirely redundant.
Mr. Michael Flynn, partner with Deloitte & Touche, states that in preparing the consultants’ report the persons involved went through a process, in conjunction with the respondent, of identifying particular projects and developing a projection of the anticipated related costs. It is his opinion that this process more than satisfied the requirement in s. 48 “to have regard to the actual estimated cost of providing the classes of public infrastructure and facilities”.
Mr. Flynn described the deliberative process which led to the production of the consultants’ report. The consultants were required to provide a sound, justifiable, equitable and accountable basis for imposing development-related contributions under section 48.
The work programme involved, inter alia, the determination of the types of projects which it appeared appropriate to include in a scheme, deciding on criteria for including particular projects within a scheme, the collection of data on these projects including projected costs and other sources of finance, a consideration of the benefit attributable to existing developments of these projects, the calculation of the total costs to be recouped under the scheme, a review of the current zoned land in the city council area considering potential for new development, and an estimation of projected demand for new development in the respondent’s area which would be expected to result in new planning permissions being sought. The consultants would also be involved in the provision of advice on the management of the scheme post implementation.
The consultants in conjunction with the respondents set out specific criteria for the inclusion of particular projects in the scheme. The criteria included, inter alia, whether the project had or would be included in the development plan, whether a preliminary report been prepared for the project, whether it appeared fair to include the particular project in a countywide contribution scheme, whether the costs for the project could be recovered elsewhere and did the costs genuinely accrue against the planning authority and thus were they appropriate to be included in a contribution charge, the likelihood that the project would be implemented within five to seven years and, if this was not likely, would it be more appropriate to include it in a subsequent scheme and the status of the particular project.
The respondent’s individual departments were requested to identify the various projects to be included in the scheme and to provide specific data with regards each particular project. The data included the capital costs, analysed by year, for the particular project, the maintenance/lifecycle costs, analysed by year, the expected life of assets, the other sources of funding for the project, the details of planning levies pursuant to s. 26 of the Act of 1963, the classification of users for the relevant location/catchment area, the type of asset, and the date of commencement and completion of the particular project. As many of the projects had not yet commenced the data was compiled with the best available information at the time of the collection of the data.
Section 48 provides that any benefit which accrues in respect of existing development may not be included in determining the contribution to be paid. Mr. Flynn notes that ultimately, the determination of the discount depended on considered and informed judgment rather than any arithmetical exercise but stresses that this, however, is not to suggest that the exercise was an arbitrary one.
The consultants further had regard to the treatment of water pricing receipts in order to ensure that the scheme as developed complied with the requirements of all water related legislation.
It is clear from the provisions of s. 48 that the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities which are provided or to be provided by the local authority. However, the planning authority is not under an obligation to include in the scheme details of specific projects it intends to complete. In the instant case the consultants’ report was commissioned by the respondent in order to ascertain the actual estimated cost for a scheme in their planning area.
Mr. Flynn also noted that given the data involved for each project is significant and complex, in order to calculate the scheme, the provision of the detailed information in the scheme was not considered to provide additional benefit to the reader. However, in determining the basis for the contribution to be paid the respondent had regard for the results of the complex processes involved in assessing the actual estimated cost.
In relation to a special contribution, s. 48(2)(c) permits the planning authority to require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit a proposed development.
Section 49(1) permits a planning authority when granting a permission under s. 34 of the Act of 2000 to include conditions requiring the payment of a contribution in respect of any public infrastructure project or service, specified in a supplementary development contribution scheme made by the planning authority, provided or carried out as may be appropriate by a planning authority or pursuant to an agreement entered into by a local authority with any other person and that will benefit the development to which the permission relates when carried out.
Section 49(7) defines public infrastructure project or service for the purposes of s. 49 (1) in specific terms viz. the provision of particular light rail or other public transport infrastructure, including car parks and other ancillary development, the provision of particular new roads, the provision of particular new sewers, waste, water and water treatment facilities, drains or water mains and ancillary infrastructure.
The respondent contends that the contrast between the relevant provisions of s. 48 and s. 49 is dramatic and that it is clear that, when it considered it appropriate to do so, the Oireachtas was able to use language which clearly required particular projects to be identified and details of same to be specified. The absence of such language in the provisions relating to a s. 48 scheme is clearly not the result of any accidental omission but the result of legislative choice.
It appears appropriate that I state that I am not concerned in any way with the merits or otherwise of the development scheme as proposed by section 48. I am only concerned to decide whether the scheme as brought into being by the respondent on 1st December, 2003, complies with the provisions of that section.
In my view s. 48 is straightforward in its language and intent, in allowing a planning authority, in this case the respondent, when granting a permission under s. 34 to include a condition requiring the payment of a contribution in respect of public infrastructures and facilities benefiting development in the area of the planning authority and that is provided or that it is intended will be provided by or on behalf of a local authority regardless of other sources of funding for infrastructure and facilities.
Section 48(2)(a) provides that subject to paragraph (c) the basis for the determination of a contribution under subs-s. 1 shall be set out in a development contribution scheme made under the section and a planning authority may make one or more schemes in respect of different parts of its functional area.
Section 48 (3)(a) sets out that the scheme shall state the basis for determining the contribution to be paid and sub-s. (3)(b) sets out that in stating the basis for determining the contributions in accordance with paragraph (a) the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or are to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities except that any benefit which accrues in respect of existing development may not be included in any such determination.
Section 48(2)(c) provides for the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.
It is clear that s. 48(2)(c) allows a planning authority to require the payment of a further contribution in respect of a particular development where specific exceptional costs not covered by the development contribution scheme are incurred by the local authority in respect of public infrastructure and facilities which benefit the proposed development, in addition to the development contribution as provided for in section 48 (1).
I am satisfied that none of the provisions of s. 48 require a draft scheme or a scheme to specify the individual projects which the planning authority intends to fund wholly or partly from money raised under that scheme nor is the scheme required to set out the level of detail as to cost or timing.
I also have to bear in mind that the scheme at issue in these proceedings is the product of a democratic decision by the members of Dublin City Council duly informed by expert advice from the council’s officials and consultants. It is also the product of a wide ranging and public consultation process in which inter alia the applicant was entitled to participate and did in fact participate fully.
I accept the submission, as made on the respondent’s behalf, that if it is to be imported into the wording of s. 48(3)(a) that all of the underlying data and analysis has to be included in the scheme, or that a requirement to specify individual projects and provide costings should be detailed, then the provision of s. 48(3)(b) would be entirely redundant.
Further I am satisfied that the relevant subsections of s. 48 dealing with the contribution to be paid refer specifically to the different classes of public infrastructure and facilities which are provided or are to be provided by the local authority and specifically do not refer to individual projects of public infrastructure or facility. It follows in my view that the Oireachtas did not intend that individual projects and facilities would be specifically referred to and costed.
In my view the respondent did have regard to the actual estimated cost of providing the classes of public infrastructure and facilities and the scheme does indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by them. It also appears that any benefit which accrued in respect of existing development was not included in the relevant determination.
The respondents were obliged to comply strictly with the legislative terms as set out in s. 48. In effect the applicant wants additional information not provided for in s. 48 and wants explanations which are not provided for. The respondent is asking the court to ignore the intention of the Oireachtas as set out in the provisions of the statute. The power in relation to the scheme is located with the elected members of Dublin City Council and is no longer an executive function. The judgment involved, and the decision to be taken, is that of the elected members. The respondent in my view is not obliged to include in the scheme further information than is required of it pursuant to section 48.
There is no suggestion in s. 48 that the amount of specific detail sought by the applicant should be set out. In effect the applicant is asking for more information to be read into the scheme than is provided for in section 48. The applicant wants every piece of working information to be disclosed in the scheme but in my view the content of s. 48 does not go this far. A reader of the consultants’ report will see in broad terms how the basis of the contribution was arrived at.
The consultants’ report, which was commissioned by the respondent, sets out in detail the methodologies employed to provide a sound, justifiable, logical, equitable, and accountable basis for the determination of financial contributions under sections 48 and 49. It is clear that the respondent grounded the scheme, as adopted, on the findings of the conslutants’ report and express reference is made to the report in the scheme. However, there is no provision in s. 48 requiring the respondent to transpose the actual findings of the consultants’ report into the scheme. The scheme must set out the basis for the determination of the contributions to be paid. The Act does not require the respondent to expressly refer to how it arrived at the actual estimated cost upon which the contribution to be paid was based.
In my view the scheme as adopted by the respondent at the meeting of its elected representatives on the 1st December, 2003, sets out the basis for the determination of a contribution pursuant to s. 48(1) which is €11,500 in respect of each residential unit and €110 per square metre of industrial/commercial development. Further, I am satisfied that in stating the basis for determining the contributions in accordance with s. 48(3)(a) the scheme as adopted does indicate the contributions to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by the public authority and it does appear that the planning authority had regard to the actual estimated cost of providing the classes of public infrastructure and facilities allowing for the fact that any benefit which accrued in respect of existing development was not to be included in any such determinations.
In my view the substantive point of the applicant’s case is that because each particular public infrastructure and facility has not been identified and costed there is a possibility, if the respondent does not act in good faith, that an applicant for planning permission will be required to make a double contribution. The applicant submits that an applicant for planning permission could possibly be subjected to a general development contribution and also a further contribution, pursuant to s. 48(2)(c) or s. 49(5), for the same project, and that an applicant will never be able to ascertain precisely whether the general contribution included that particular project and therefore whether the further contribution was warranted.
It is clear that, to date, pursuant to the scheme, no applicant has been required to pay a special contribution nor has there been a supplementary development contribution scheme and if either of these events are to take place they are specifically provided for in s. 48 and s. 49 and both situations can only arise in certain defined circumstances.
I do not consider that there is any substance to the applicant’s arguments in this regard because in the event of any dispute arising in respect of a special contribution the onus will be on the planning authority to demonstrate that the condition is appropriate and in this regard it is of significance that there is a full right of appeal to An Bord Pleanála. Section 139 of the Act of 2000 provides for appeals against conditions imposed on the grant of planning permission. Section 48(13)(a) recognises that an applicant for planning permission may appeal against a condition imposed in relation to a special contribution. The provision provides that An Bord Pleanála shall not determine the relevant application as if it had been made to it in the first instance, but shall determine only the matters under appeal, that being that a special contribution was imposed. Furthermore, it is to be presumed that the planning authority will exercise their powers pursuant to s. 48(2)(c) fairly and reasonably.
It also appears to me that, at this point in time, the applicants contention in this regard is somewhat hypothetical and I would not be satisfied on the balance of probabilities that the applicant has made out a case that either it or its constituent members will suffer prejudice or financial loss now or in the future.
The circumstances in which a supplementary contribution maybe imposed pursuant to s. 49 of the Act are strictly defined and a scheme can only come into being after a process of consultation. It is to be presumed that the planning authority will exercise their powers pursuant to s. 49 fairly and reasonably. Further, it is clear from the provisions of s. 49 that the infrastructural projects are quite different to those referred to in s. 48 and accordingly the scheme, the subject matter of this application, does not pre-empt or preclude the lawful operation of either s. 48 (2)(c) or s. 49 by the respondent.
The applicant also contends that the consultation process relating to the draft scheme was inadequate because the scheme does not even purport to set out the basis for determining the contributions to be paid referring instead to the consultant’s report and, even if it is permissible to have recourse to the consultants’ report (and this is not accepted by the applicant) that there still was not enough information available to the applicant and other interested parties to make a proper or full submission or to engage in the consultation process in any meaningful way. Further it is contended on the applicant’s behalf that the respondent was not entitled to refer to, or to include in any way in the scheme, the consultants’ report. It is submitted that this is not a Dublin City Council document.
In my view it was permissible for the respondent to have referred to the consultants’ report and to have incorporated it into the scheme. The consultants’ report was clearly an integral part of the consultation process and was freely available to all concerned persons including the applicant and it constituent members. The respondent did not in my view have to set out the basis for the scheme but did have to set out the basis for determining the contribution. In my view the consultants’ report, in fact, is supplementary to the scheme itself. The real criticism in this aspect is to the extent of the information contained in the consultants’ report. It is accepted by the respondent that all the information available is not set out in the consultants’ report for a number of reasons. The reality however is that, in my view, the scheme itself complies with s. 48 and if the legislature had intended that every piece of information as considered by the respondent must be set out in the scheme it could clearly have said so in the provisions of section 48. The scheme does no more or less than it is obliged to do and the consultants’ report provides significant background detail.
Accordingly I reject the applicant’s submission that because the consultants’ report does not contain all the information considered, the scheme itself as brought into being by the respondent is ultra vires the provisions of s. 48 and I further reject the applicants contention that because of the inclusion of the consultants’ report in the scheme the scheme itself is ultra vires the provisions of section 48.
The applicant further contends that the respondent was not entitled to vary the scheme which it did on 1st December, 2003, when the draft scheme and the report of the City Manager were considered at a meeting of the elected members of Dublin City Council. A decision was made to approve the draft scheme, which had been subjected to the consultation process, subject to three changes being made. The changes were that the contribution per residential unit would be increased from €10,500 to €11,500 (9.5%) per residential unit, the commercial/industrial levy was increased from €100 per square metre to €110 (10%) per square metre and affordable housing was excluded from the scheme.
The applicant contends that the whole process of consultation should have been commenced afresh because of the changes made by the elected members of Dublin City Council to the draft scheme prior to voting in the scheme itself.
In Duffy v. Waterford Corporation (Unreported, High Court, 21st July, 1999) the local authority proposed to build a scheme of local authority houses which was exempt from the normal planning permission process. However, the local authority was bound to follow the procedures set out in Part X of the Local Government (Planning and Development) Regulations, 1994. It was argued by the applicant that the local authority, having amended the scheme subsequent to the consultation process was obliged to re-advertise the scheme as amended and again allow for objections from members of the public. The applicant argued that as material alterations were made in the draft scheme the authority were again obliged to go through the procedure of notification of the public and receiving and considering objections.
Rule 134 of the Regulations of 1994 provided that, after the expiration of the period during which submissions or observations with respect to proposed development may be made, the local authority shall prepare a report which shall indicate, inter alia, “whether it is proposed to proceed with the proposed development, to proceed with the proposed development as varied or modified in a manner indicated in the report, or not to proceed with the proposed development.” Rule 135 provided that a local authority shall indicate, by sending notice, that it will “proceed with the proposed development, or proceed with the proposed development subject to variations or modifications, or not proceed with the proposed development, as the case may be.”
McGuinness J. determined that the situation which arose in the instant case, being a development to be carried out by the planning authority and therefore not requiring planning permission, was not analogous to the situation dealt with in Finn v. Bray U.D.C. [1969] I.R. 169. She determined that the respondent had complied with its obligations under the Regulations and accepted that there was no obligation to re-advertise the amended scheme and go through the objections procedure again. The learned judge accepted the submissions of the respondent including that, in theory, there would be no end to the circular process of amendment and subsequent objections if such a situation was allowed to occur.
I take the view that there is no substance in the applicant’s contention because s. 48(8)(a) specifically provides for the planning authority to make the scheme by resolution or to vary or modify the scheme. The section states:
“Following the consideration of the manger’s report, and having had regard to any recommendations made by the Minister, the planning authority shall make the scheme, unless it decides, by resolution, to vary or modify the scheme, otherwise than as recommend in the manager’s report, or otherwise decides not to make the scheme.”
In my view the elected members of Dublin City Council were entitled to vary the draft scheme and if it had been intended in any way that the making of a material variation obligated the city council to go through a further consultation process such an intention could easily have been stated by the Oireachtas in the relevant section.
I note in particular in this regard the provisions, as set out in s. 12 of the Act of 2000, relating to developmental plans where specific provision is made, at s. 12(7)(a) requiring the planning authority to carry out the consultation process again if a material amendment is made to the draft development plan. No similar provision is provided for in conjunction with section 48(8)(a).
I note the proposition as put forward in Keane on Local Government at p. 224 2nd edition where in it is stated:
“The planning authority, through the elected members, must then consider the scheme, the report of the manager and any recommendation made by the Minister. They may then, by resolution, make the scheme. They may vary or modify the scheme, or decide not to make the scheme. Either way, the resolution must be within six weeks of receipt of the manager’s report. The subs. is silent as to whether, where a variation or modification of the scheme is proposed, further consultation is required. It is submitted that further consultation is not required in line with the decision of Duffy v. Waterford Coporation. If such further consultation was required, an unending series of modifications and variations requiring further publication and consultation might be required. Upon the making of the scheme notification must be published.”
I take the view that there is no statutory obligation contained in s. 48 which obliges the respondent to re-advertise the draft scheme, if it is subsequently varied by the planning authority. I am satisfied that the amendments as made were no more than a variation of the scheme and could not be construed as in anyway affecting the underlying structure or the basis of the scheme. I do not consider the amendments in any event as being material.
In these circumstances I reject the applicant’s contention that the respondent was not entitled to vary the scheme pursuant to s. 48(8)(a) without going through the consultation process again.
In these circumstances I refuse the reliefs as sought I dismiss the applicant’s claim.
O’Malley Construction Company Ltd v Galway County Council
[2011] IEHC 440
JUDGMENT of Mr. Justice Hogan delivered on the 15th day of September, 2011
1. In these judicial review proceedings the applicant seeks repayment from Galway County Council (“the Council”) of a planning contribution in the sum of €1,100,456 on the basis that certain works in respect of which the contribution was given do not, in fact, facilitate the development in question.
2. The background to this application can be stated in summary as follows. In 2001, the applicant applied for planning permission for some 91 houses on an eighteen acre site immediately to the north of the main street in Barna, County Galway. This application was initially refused by the Council and, on appeal, by An Bord Pleanála in May, 2001. That letter from the Board nonetheless invited the applicant to make revised planning application. Planning permission was ultimately granted to the applicant permitting it to construct 148 dwellings on the site, subject to extensive conditions. It may be convenient at this point to say something about the dimensions of the site because the contribution condition which gives rise to the present proceedings cannot be otherwise readily understood.
3. The site itself is roughly in the shape of a parallelogram to the south of which lie Barna Village and Barna Main Street. Two minor roads lie to the east and west which both separately connect with the main road going through Barna. To the north of the site lay the route of the proposed Barne by-pass. It quickly became clear that vehicular access to the site would be crucial so far as the grant of planning permission was concerned. There was understandable concern on the part of the planners that Barna Main Street would be overloaded with traffic if the only egress from the site was on to that street. Indeed, it was with this in mind that the original plans proposed by the developer envisaged vehicular access from different parts of the site, including access from the two minor side roads.
4. These problems could have been solved – almost at one stroke – if a Barna bypass were to be constructed. This would serve to relieve Barna Main Street of the traffic coming from Connamara and West Galway generally through Barna and thereafter on to Galway City. In that scenario, many of the concerns about vehicular access in respect of the applicant’s development would have been eased, given that, with the advent of such a by-pass, Barna Main Street would then have been capable of taking the traffic from the southern entrance onto the street. I should digress at this point to note that it was originally envisaged by the applicant that there would have been access from the northern end of the proposed development onto the bypass itself. Indeed, the applicant had an option to purchase .75 acres of land from one Mr. and Mrs. Faherty in order to facilitate the construction of a roundabout for the bypass route.
5. Returning now to the actual grant of planning permission, a key feature of the present case is that condition 2 of the permission modified the original vehicular access plan by preventing access from the north of the development onto the proposed bypass. This condition specified that the proposed access road from the development onto the bypass should, in fact, terminate at what was described as “a hammerhead turning area” within the area of the site and, accordingly, that there would be no vehicular access on to the proposed bypass route located at the north of the site.
6. Other conditions specified the development contributions to be paid by the applicant. The critical condition so far as these proceedings are concerned is condition No.19. This condition provided that:-
“The developer should pay a sum of money to the planning authority as a contribution towards expenditure that is proposed to be incurred by the planning authority in respect of the construction of the Barna bypass route. The amount of the contribution and arrangements for payment shall be agreed between the developer and the planning authority, or, in default of agreement, shall be determined by An Bord Pleanála. In the case of expenditure that is proposed to be incurred, the requirement to pay this contribution is subject to the provisions of s. 26(2)(h) of the Local Government (Planning and Development) Act 1963, generally, and, in particular, the specified period for the purposes of para. (h) shall be the period of seven years from the date of this order.
Reason:
It is considered reasonable that the developer should contribute towards the expenditure that was, and/or that is proposed to be incurred by the planning authority in respect of works facilitating the proposed development.”
7. I should note here that although the Local Government (Planning and Development) Act 1963 (“the 1963 Act”) has long since been repealed by the provisions of the Planning and Development Act 2000 (“the 2000 Act”), the validity of the condition in this present case is nonetheless governed by the terms of the former Act, given that the initial application for planning permission was made before the 2000 Act came into force.
8. In the two years that followed there was extensive correspondence and exchanges between the applicant and the Council in respect of the amount of the planning contribution. Ultimately the matter was referred back to An Bord Pleanála. In his report for the Board in July, 2005, the Board’s Inspector recommended that 416 metres of the proposed bypass should be apportioned between the applicant and another developer by reference to the number of units for which they respectively had permission. The Inspector observed:-
“It would appear that the bypass is to be constructed as a route (a) to serve as a bypass the existing village centre for traffic travelling to and from the west and (b) to open up lands to the north of the existing village for future development. As such, the bypass is a dual role in (a) producing existing congestion in the village which facilitate the objectives of the planning authority and (b) facilitate lands for development which would in turn benefit the interest of property developers. I therefore consider that the costs of the development of the bypass should be shared between the interested parties.”
9. The Inspector also went to state:-
“Another issue which the Board may consider taking into consideration in assessing the appropriate amount payable is the fact that the proposed development does not incorporate an access road directly onto the Barna bypass. All traffic from the proposed development appears to access Barna Main Street. That is not to say, however, that the proposed development will not benefit from this bypass, traffic volumes on Barna Main Street will be significantly reduced as a result of the bypass and this will benefit the development in question.”
10. These views appear to have been adopted by the Board’s decision of the 19th August, 2005. Ms. Angela Tunney, a member of the Board prepared what was described as “a note on the determination of contribution” which was effectively incorporated into the official direction of the Board. This note stated that:-
“The cost being apportioned to O’Malley and McEvaddy [another developer developing immediately adjacent lands] at €1.524.814.9 represents the full cost of the 460m length between minor road junctions. This was then further apportioned as between the two developers requiring a contribution of €1,100, 456 towards the construction of the 460m length of the Barna bypass.”
11. As December, 2005 approached the applicant had completed a substantial number of residential units. There was, however, a difficulty in completing sale due to lack of confirmation by the Council of compliance with condition No.19. To that end the applicant and the Council entered into negotiations which ultimately resulted in an agreement whereby the applicant agreed to transfer 0.75 of an acre of certain land which it owned to the Council at a value of €235,000. This sum, in turn, was to be deducted from the contribution of €1,100,456. The applicant then paid the sum of €975,456 by way of development contribution. It also agreed to pay the Council the sum of €100,000 of what was described as a “goodwill gesture” in order to obtain a document from the Council confirming that it had complied with condition No. 19. As Clarke J. pointed out in Glenkerrin Homes Ltd. v. Dun Laoghaire Corporation [2007] IEHC 298 it had by this stage become necessary for developers to secure such letters of confirmation from local authorities, since the solicitors for prospective purchasers were not prepared to proceed with the purchase in the absence of such correspondence. Indeed, as the evidence showed in Glenkerrin Homes, these documents had acquired the status of quasi-title documents. I will return further to this issue towards the conclusion of this judgment.
12. Following receipt of these monies, the Council wrote to the applicant on the 14th December, 2005, confirming compliance with condition No.19. By November, 2006 the development – now known as An Creagán – was complete. It was subsequently taken in charge by the Council.
13. The seven year period contemplated in condition No.19 expired in January, 2010. At that point the only portion of the Barna bypass which had in fact been completed was the 460m stretch of the roadway to the north of the development which connects the two secondary roads which run to the east and west of An Creagán. On the 25th January, 2010, the applicant’s solicitors wrote to the Council noting this state of affairs. They sought the return of the monies which had been paid over by reason of the fact that such payment was contingent on the completion of the entire bypass, whereas only a portion of it -which they contended was in fact 17% – had actually been built. When the Council refused to return the sums in question, this gave rise to the present proceedings.
Statutory provisions in relation to contribution payments
14. Before proceeding further it is necessary to set out the relevant provisions of the 1963 Act. Section 26(2)(h) of the 1963 Act provides that the planning authority may impose:-
“Conditions for requiring contribution (either in one sum or by instalments) towards any expenditure (including expenditure on the acquisition of land) that is proposed to be incurred by any local authority in respect of works…facilitating the proposed development, subject to stipulations providing for –
(i) where the proposed works are, within a specified period, not commenced the return of the contribution with the instalments thereof paid during that period (as may be appropriate),
(ii) where the proposed works are, within the said period, carried out in part only or in such manner as to facilitate the proposed development to a lesser extent, the return of a proportion of the contribution or the instalments thereof paid during that period (as may be appropriate), and
(iii) payment of interest on the contribution or any instalments thereof that have been paid (as may be appropriate) as long as and insofar as is or they are retained unexpended by the local authority.”
15. Section 14(4) of the Local Government (Planning and Development) Act 1992 further provides that, in default of agreement as between the applicant for permission and the relevant planning authority in relation to the amount of contribution, this can now be determined by An Bord Pleanála.
16. The total length of the proposed by-pass was 2.7km. The Council places some emphasis on the fact that the length of the proposed carriageway was 1.7km, with the extra 1km made up of roundabouts and slip roads. On this view of matters, it follows that 27% of the 1.7km of by-pass has actually been constructed, whereas this figure falls to just over 17% if account is also taken of the roundabouts and slip roads. I am prepared to accept that the Council’s presentation of these figures is the correct one, but in view of the conclusions I am about to reach, I consider that it has no real bearing on the question before me.
17. The Council also point to the fact that the applicant was aware that the completion of the project would be contingent on other development in the vicinity and, specifically, the capacity of the Council to impose other contribution levies on other developers seeking to develop lands to the east and west of An Creagán. While this may well be true, it is really beside the point. The applicant has, of course, no responsibility for planning in the area and it cannot be at the mercy of other potential developers or the size of planning contributions which might be exacted from them. There was, in any event, a possibility that Government funding would be forthcoming to assist in the completion of the by-pass. In that regard, the evidence is that as recently as November, 2008 the Council applied to the Department of the Environment for funding for completion of the project, but this was not forthcoming. Had the decision been otherwise, then, of course, the project could have been completed without the necessity for further planning contributions from other developers.
18. None of this, however, can take from the fact that the Council’s basic vires to impose contributions of this kind is contingent on it being shown objectively that such contributions actually facilitated the development within the meaning of s. 26(h) of the 1963 Act. The Council cannot, of course, extend its substantive powers in relation to planning matters by means of estoppel: see, e.g., Re Greendale Properties Ltd. [1977] I.R. 256 at 263-264 per Henchy J. and Dublin Corporation v. McGrath [1978] I.L.R.M. 208 at 210, per McMahon J.
19. As matters stand, therefore, the only portion of the Barna by-pass which has been constructed is the 460m stretch of carriageway between the two secondary roads. As we have noted, the secondary roads run roughly parallel to the applicant’s development of An Creagán and the 460m stretch of road is laid out in an arc immediately due north of this development. Condition 19 of the grant of permission stipulated that, for the purposes of s. 26(2)(h)(ii), the works must be completed within a period of seven years. That time period expired in January, 2010 and there is no realistic prospect that the remainder of the by-pass could be completed without development contributions from other developers applying for planning permission in respect of lands adjacent to the route or funding from the Department of the Environment. Given the present economic climate, it must be accepted that, for the foreseeable future at any rate, the completion of the by-pass remains a most unlikely prospect.
20. As we have already noted, the planning permission granted by An Bord Pleanála required the internal road servicing An Creagan to terminate in what is described as a hammer head formation. In other words, there is no vehicular access due north from An Creagán to the 460m stretch of the by-pass, but such traffic must rather exit in the opposite direction directly on to Barna Main Street. It is nevertheless not disputed but that the development would have benefited from the completion of the entire by-pass as, in the words of the Board’s inspector in a report prepared in July, 2005, “traffic volumes on Barna Main Street will be significantly reduced as a result of the by-pass and this will benefit the development in question.”
21. This brings us to the nub of the case. While the development would have benefited from the completion of the entire by-pass by relieving the volume of traffic coming through Barna Main Street, it is hard to discern any possible benefit to the development in circumstances where only some 460m of carriage way has been completed to the north and in respect of which there is no vehicular access from An Creagán. It would, of course, have been very different had the project been completed or where this was on the point of happening. As the Board’s inspector noted, even without such direct access to the north of the site, the relief of the Barna main street to the south would have assisted the vehicular traffic from An Creagán and the development would thus have benefited as a result.
22. What, then, is the position where the developer has been required to make a significant financial contribution in respect of works which do not actually facilitate the development? The intention of the Oireachtas as manifested in s. 26(h)(i) is that the financial contribution is to be returned where the proposed works were not commenced. Section 26(h)(ii) further envisages that where the proposed works have been commenced, but either carried out in part only or “in such manner as to facilitate the proposed development to a lesser extent”, then the sub-section provides for the return of a proportionate part of the contribution.
23. It is true that the Oireachtas has not quite provided for the unusual scenario which has to pass here, namely, circumstances where works have actually been commenced and finished, but where by reason of the incomplete nature of those works, no benefit actually ensues to the development. The present case falls somewhere between the interstices of the two categories actually specified in s. 26(2)(h)(i) and s. 26(2)(h)(ii). It is nonetheless clear that this Court is entitled to reason by analogy and conclude that the contribution should nonetheless be returned. In light of the clear purposes and objectives of the sub-section, I do not think that it would be doing excessive violence to the language of these statutory sub-paragraphs if one was to interpret them as precluding the Council retaining a planning contribution which, in the event, did not actually benefit the development..
24. It is axiomatic that a local authority does not enjoy an autonomous power to impose statutory levies – such as a planning contribution – in the absence of express statutory authority. Article 28A.2 of the Constitution stipulates that the powers and functions of local authorities “shall be exercised and performed in accordance with law”. The Council is not entitled to require that a developer make a contribution to works which do not benefit the development. If that were the law, then it would be tantamount to saying that the Council enjoyed a taxation power.
Conclusions regarding the planning contribution
25. For these reasons, I am coerced to the conclusion that the planning contribution requirement was ultra vires s. 26(2)(h) insofar as it required the developer to make a substantial payment in respect of works which, in the ultimate event, did not benefit the development. The Council had seven years within which to build the by-pass (and not simply a section of it) and thus benefit the development. Once that did not happen by that date, then condition no. 19 was rendered ultra vires s. 26(2)(h) and the Council was obliged to return the planning contribution (namely, €1,100,456) in question. It follows that, in line with s. 26(2)(h)(iii), interest is payable as from January, 2010 in respect of this sum. I will discuss further with counsel the appropriate rate of interest and the quantification of the amount of that interest.
The €100,000 “goodwill gesture”
26. It remains to consider the position with regard to the €100,000 “goodwill” gesture. The starting point here is that the courts must be assiduous to ensure that public bodies do not make monetary demands for which there is no proper legal basis. It would be intolerable if such bodies were to seek out such payments colore officii in return for the efficient discharge of their statutory functions. If this were the situation in the present case, then the applicant would have been entitled – more or less as a matter of right – to have sought restitution of this payment: see, e.g., the comments of Lord Goff in Woolwich Building Society v. Inland Revenue Commissioners [1993] 1 A.C. 1, 177.
27. In the present case I recognise the force of the applicant’s contentions that the €100,000 payment was made under duress, not least given that by this stage for them the production by the Council of the letter of compliance was now an economic imperative for all the reasons identified in respect of such cases by Clarke J. in Glenkrrein Homes. The applicant was, in the words of a former director of the applicant, Frank Burke, “desperate to secure evidence of compliance with condition No. 19 from the Planning Authority”: see para. 21 of his affidavit of 10th January, 2011. Nevertheless, I find myself concluding that the payment was made in the course of an overall settlement of the outstanding issues remaining as between the parties. In these circumstances, I feel that I must reject the contention that the payment was made under duress.
28. The nature of that settlement is evidenced by the Mr. Burke’s own letter of 13th December, 2005, which recites:-
“Following our meeting on the 13th December, 2005, we now propose to deduct this sum of €225,000 from the overall contribution of €1,100,456 and to transfer ownership of the 0.75 acre site to Galway County Council. We are satisfied that this discharges O’Malley Construction Co. Ltd. entire obligations under condition No. 19 as determined by An Bord Pleanála and that no further contribution is due under this condition Furthermore, we are satisfied that there is no obligation on O’Malley Construction under the terms [of the planning permission] and, in particular, condition No. 19 as determined by An Bord Pleanála to make any further lands available to Galway County Council or to pay a contribution in lieu of any lands outside of our ownership in this area. However, as a gesture to Galway County Council towards the cost of acquiring the remaining portion of land for the purposes of completing this section of the by-pass road, we are making a further contribution to Galway County Council. We wish to make it clear that this is outside of our obligations under Condition No. 19 and is merely a gesture of goodwill towards the Council in your endeavours to complete this section of the by-pass route.”
29. As the italicised passages here demonstrate, this payment was made to assist the Council to acquire further lands necessary for the construction of this particular section of the by-pass. As it happens, the evidence of Mr. Kevin Kelly, the Council’s Director of Planning, is that the €100,000 was used to acquire certain land from Mr. and Mrs. Faherty “which was necessary for the purpose of the completion of the section of the roadway between the two minor roads”, i.e., the 460m of carriageway which was actually built.
30. In this respect, therefore, this payment is, therefore, different from the payment made pursuant to condition No. 19, given what I feel driven to conclude (albeit not without some hesitation) was the voluntary nature of the former. Whereas by law the Council is not entitled to exact such a payment by means of a planning contribution where there is no benefit to the developer from the proposed works, the same is not true in respect of a purely voluntary payment.
31. Given that the payment was received and expended in good faith on land acquisition in order to complete this section of the by-pass, it cannot be said that the consideration for the voluntary payment ultimately failed such as would bring this case within the classic parameters of unjust enrichment: see, e.g., Fibrosa Spolka Akcjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] AC 32, 61, per Lord Atkin.
32. In any event, even if there were to have been unjust enrichment, the Council is entitled to rely on the defence of change of position, namely, that it has expended the money. This is, of course, a well established defence to such claims, especially in cases of laches or acquiescence: see, e.g., Murphy v. Attorney General [1982] I.R. 241 at 319-320, per Henchy J. In that case Henchy J. held that the State was entitled (with some very limited exceptions) to rely on such a defence to defeat the generality of claims for the repayment of taxes illegally collected from married couples following the invalidation of the relevant provisions of the Income Tax Act 1967. As Henchy J. put it:-
“…it is beyond question that the State in its executive capacity received the moneys in good faith, in reliance on the presumption that the now-condemned section were favoured with constitutionality. In every tax year from the enactment of the Income Tax Act 1967, until the institution of these proceedings in March 1978, the State justifiably altered its position by spending the taxes thus collected and by arranging its fiscal and taxation policies and programmes accordingly.”
33. That defence is clearly available to the Council, not least given the applicant must have known that the money was to be spent in the fashion indicated and that it was so spent.
Conclusions
34. In the event, therefore, the applicant is not entitled to the return of the payment of the €100,000. Unlike the planning contribution, this was a voluntary payment earmarked for a specific purpose (i.e., land acquisition in the context of the construction of the 460m section of carriageway) and the monies were expended accordingly.
35. As we have seen, it is otherwise with regard to the planning contribution. This was not a voluntary payment and by law it could only have been exacted in circumstances where the Council completed works which actually were of benefit to the development. When this did not occur by January, 2010, the applicant then became entitled to the return of €1,100,456, together with interest as from that date.