Permission Requirement
Planning and Development Act
Development.
3.—F38[(1) In this Act, except where the context otherwise requires, “development” means—
(a) the carrying out of any works in, on, over or under land, or the making of any material change in the use of any land or structures situated on land, or
(b) development within the meaning of Part XXI (inserted by section 171 of the Maritime Area Planning Act 2021).]
(2) For the purposes of subsection (1) and without prejudice to the generality of that subsection—
(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or
(b) where land becomes used for any of the following purposes—
(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or habitation or the sale of goods,
(ii) the storage of caravans or tents, or
(iii) the deposit of vehicles whether or not usable for the purpose for which they were constructed or last used, old metal, mining or industrial waste, builders’ waste, rubbish or debris,
the use of the land shall be taken as having materially changed.
(3) For the avoidance of doubt, it is hereby declared that, for the purposes of this section, the use as two or more dwellings of any house previously used as a single dwelling involves a material change in the use of the structure and of each part thereof which is so used.
Annotations:
Amendments:
F38
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 2, S.I. No. 488 of 2022.
F39[
Short term lettings
3A. (1) The use of a house or part of a house situated in a rent pressure zone for short term letting purposes is a material change in use of the house or part thereof, as the case may be.
(2) For the purposes of this section, the Minister may make regulations requiring such persons as are specified in the regulations to provide a planning authority with such information as may be so specified and at such intervals as may be so specified in relation to short term lettings in the administrative area of the planning authority.
(3) A person who contravenes a provision of regulations under this section that is described in the regulations as a penal provision shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine.
(4) This section shall not operate to abrogate or amend the law with regard to—
(a) lettings (including short term lettings) outside a rent pressure zone, or
(b) lettings (other than short term lettings) in a rent pressure zone.
(5) In this section—
“rent pressure zone” means—
(a) any area standing prescribed for the time being under section 24A of the Residential Tenancies Act 2004, or
(b) an administrative area deemed to be a rent pressure zone under section 24B of that Act;
“short term letting” means the letting of a house or part of a house for any period not exceeding 14 days, and includes a licence that permits the licensee to enter and reside in the house or part thereof for any such period in consideration of the making by any person (whether or not the licensee) of a payment or payments to the licensor.]
Annotations
Amendments:
F39
Inserted (1.07.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 38, S.I. No. 286 of 2019. A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
F40
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(a), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F41
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(b), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F42
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(c), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
Modifications (not altering text):
C20
Prospective affecting provision: subss. (1A)-(1F) inserted, subs. (2) substituted and definitions inserted into subs. (5) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3, not commenced as of date of revision as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F40[(1A) A person shall not, during the relevant period, advertise or cause the advertisement of a relevant property for short term letting purposes, or enter into any arrangement in respect of a relevant property for short term letting purposes, unless the use of the relevant property for those purposes—
(a) is in accordance with a permission granted under Part III, or
(b) is exempted development for the purposes of this Act.
(1B) A person who contravenes subsection (1A) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine.
(1C) A person shall be deemed not to have contravened subsection (1A) in respect of a relevant property if the person produces proof, provided by a planning authority in accordance with regulations made under subsection (2), of the matters set out in paragraphs (a) or (b) of that subsection in respect of the relevant property.
(1D) The relevant period may, by order of the Minister made before the expiry of that period, be extended for such period (being a period not exceeding 6 months) as is specified in the order.
(1E) An order under subsection (1D) shall be made by the Minister where he or she is satisfied that it is necessary in order to address an acute shortage of rental accommodation (other than for short term letting purposes) in rent pressure zones.
(1F) An order under subsection (1D) shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.]
F41[(2) For the purposes of this section, the Minister may make regulations—
(a) requiring such persons as are specified in the regulations to provide a planning authority with such information as may be specified and at such intervals as may be so specified in relation to short term lettings in the administrative area of the planning authority, and
(b) requiring a planning authority to provide to such persons as are specified in the regulations such proof of the matters set out in paragraph (a) or (b) of subsection (1A) in respect of a relevant property as may be specified in the regulations.]
…
(5) …
F42[“relevant period” means the period of 6 months commencing on the day following the commencement of section 3 of the Planning and Development, Maritime and Valuation (Amendment) Act 2022;
“relevant property” means a house or part of a house that is not a principal private residence and is located in a rent pressure zone.]
Exempted development.
4.—(1) The following shall be exempted developments for the purposes of this Act—
(a) development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used;
F43[(aa) development by a local authority in its functional area (other than, in the case of a local authority that is a coastal planning authority, its nearshore area);]
F44[(ab) development by a coastal planning authority that—
(i) owns the maritime site on which the development is proposed to be situated, or
(ii) is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
in its nearshore area;]
F45[(ab) development consisting of the carrying out of relevant works or related activities over principal burial land, ancillary burial land or ancillary land within the meaning of the Institutional Burials Act 2022;]
(b) F46[…]
(c) F46[…]
(d) F46[…]
F47[(e) development consisting of the carrying out by a local authority of any works required for the construction of a new road or the maintenance or improvement of a road;
(f) development carried out on behalf of, or jointly or in partnership with, a local authority, pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity;]
(g) development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose;
(h) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures;
F48[(i) development consisting of the thinning, felling or replanting of trees, forests or woodlands or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species;]
F49[(ia) development (other than development consisting of the provision of access to a national road within the meaning of the Roads Act 1993) that consists of—
(I) the construction, maintenance or improvement of a road (other than a public road) that serves a forest or woodland, or
(II) works ancillary to such construction, maintenance or improvement;]
(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;
(k) development consisting of the use of land for the purposes of a casual trading area (within the meaning of the Casual Trading Act, 1995);
(l) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced F50[or works consisting of land reclamation or reclamation of estuarine marsh land and of callows, referred to in section 2 of that Act.]
F44[(1A) Subject to subsection (1B), the following classes of development shall also be exempted development for the purposes of this Act if carried out wholly in the maritime area:
(a) development for the purposes of any survey for archaeological purposes;
(b) development for the purposes, or consisting, of—
(i) the exploration for petroleum, within the meaning of Part II of the Petroleum and Other Minerals Development Act 1960, in accordance with a licence under section 8, 9 or 19 of that Act or a lease under section 13 of that Act,
(ii) the working, within such meaning, of such petroleum, in accordance with such lease or licence, or
(iii) the restoration of the area in which such exploration or working has taken place;
(c) development consisting, or for the purposes, of the construction or operation, in accordance with a consent under subsection (1) of section 40 of the Gas Act 1976, of an upstream pipeline,
(d) development for the purposes, or consisting, of dumping within the meaning of the Dumping At Sea Act 1996;
(e) development authorised under section 638 of the Merchant Shipping Act 1894 or section 3 of the Merchant Shipping (Commissioners of Irish Lights) Act 1997 by the Commissioners of Irish Lights for the purposes, or consisting, of the placement of aids to navigation;
(f) activities that are the subject of, or require, a licence under Part 5 of the Maritime Area Planning Act 2021;
(g) development consisting of the use of any land or maritime site for the purposes of—
(i) the harvesting of shellfish, or
(ii) activities relating to fishing or aquaculture.
(1B) Development referred to in paragraph paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an environmental impact assessment of the development is required.
(1C) Development referred to in paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an appropriate assessment of the development is required.]
(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—
(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or
(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).
(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.
(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.
(3) A reference in this Act to exempted development shall be construed as a reference to development which is—
(a) any of the developments specified in F51[subsection (1) or (1A)], or
(b) development which, having regard to any regulations under subsection (2), is exempted development for the purposes of this Act.
F48[(4) Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.
(4A) Notwithstanding subsection (4), the Minister may make regulations prescribing development or any class of development that is—
(a) authorised, or required to be authorised by or under any statute (other than this Act) whether by means of a licence, consent, approval or otherwise, and
(b) as respects which an environmental impact assessment or an appropriate assessment is required,
to be exempted development.]
(5) Before making regulations under this section, the Minister shall consult with any other State authority where he or she or that other State authority considers that any such regulation relates to the functions of that State authority.
Annotations
Amendments:
F43
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F44
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F45
Inserted (15.07.2022) by Institutional Burials Act 2022 (18/2022), s. 97, S.I. No. 356 of 2022.
F46
Deleted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11.
F47
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 12, S.I. No. 214 of 2014.
F48
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(i) and (b), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F49
Substituted (8.02.2020) by Planning and Development (Amendment) Act 2018 (16/2018), s. 8, S.I. No. 44 of 2020.
F50
Inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(iii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F51
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F52
Inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
Modifications (not altering text):
C21
Prospective affecting provision: subs. (1)(fa) inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
F52[(fa) development to which section 179A applies;]
C22
Prospective affecting provision: certain developments prescribed as exempted developments by Remediation of Dwellings Damaged by the use of Defective Concrete Blocks Act 2022 (28/2022), s. 28, not commenced as of date of revision.
Exempted development
28. (1) Subject to subsections (2) and (3), and section 4(4) of the Act of 2000, development consisting of the completion of an approved remediation option shall be exempted development within the meaning of, and for the purposes of, that Act.
(2) The development referred to in subsection (1) shall only be exempted development where, on its completion, it is not inconsistent with, or materially different from, the appearance and character of the relevant dwelling in respect of which the approved remediation option is to be or has been completed.
(3) Where the approved remediation option is the demolition of the relevant dwelling and the reconstruction of the dwelling and any permission granted in respect of the relevant dwelling under section 34 of the Act of 2000 is subject to conditions under that section, the conditions shall continue to apply to the relevant dwelling.
(4) In this section—
“development” has the meaning it has in the Act of 2000;
“permission” has the meaning it has in the Act of 2000.
C23
Certain developments prescribed as exempted developments (1.05.2007) by Prisons Act 2007 (10/2007), s. 28, S.I. No. 180 of 2007.
Exemptions, etc., relating to development.
28.— (1) A development—
(a) is an exempted development for the purposes of the Planning and Development Acts 2000 to 2006,
(b) is not subject to—
(i) regulations under section 181 of the Planning and Development Act 2000 ,
(ii) the European Communities (Environmental Impact Assessment) Regulations 1989 to 2005,
(iii) the said Acts of 2000 to 2006 in so far as they relate to environmental impact assessments or any regulations under those Acts relating to such assessments, or
(iv) the Building Control Act 1990 and regulations thereunder,
and
(c) subject to subsections (2) and (3), shall not require a consent or licence under the National Monuments Acts 1930 to 2004 (other than a licence under section 25 of the National Monuments Act 1930 ) or any other consent or licence.
C24
Additional developments prescribed as exempted developments by Dublin Transport Authority Act 2008 (15/2008), s. 44(14), as inserted (8.02.2016) by Public Transport Act 2016 (3/2016), s. 1(b)(iv), commenced on enactment.
Functions of Authority in relation to public transport infrastructure.
44.—(1) In relation to public transport infrastructure in the GDA, the Authority shall have the following functions: …
[(14) The carrying out by the Authority, on its behalf or at its direction of —
(a) a proposed road development (within the meaning of the Roads Act 1993) that has been approved by An Bord Pleanála under section 51 (as amended by section 9 of the Roads Act 2007) of that Act, or
(b) a proposed development that has been approved by An Bord Pleanála—
(i) under subsection (9) (inserted by section 34(c) of the Planning and Development (Strategic Infrastructure) Act 2006) of section 175 of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section, or
(ii) under subsection (8) of section 177AE (inserted by section 57 of the Planning and Development (Amendment) Act 2010) of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section,
shall be exempted developments for the purposes of the Act of 2000.]
C25
Additional developments specified as exempted developments (23.12.2001) by Transport (Railway Infrastructure) Act 2001 (55/2001), s. 38, commenced on enactment, as substituted (1.08.2008) by Dublin Transport Authority Act 2008 (15/2008), s. 115(6), S.I. No. 291 of 2008.
Exempted development.
[38.— (1) Each of the following shall be exempted development for the purposes of the Act of 2000:
(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development;
(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order. ]
Editorial Notes:
E16
Power pursuant to subs. (4A) exercised (14.12.2022) by Planning and Development Act 2000 (Exempted Development) (Number 5) Regulations 2022 (S.I. No. 664 of 2022), in effect as per reg. 1(3).
E17
Power pursuant to subs. (2) exercised (29.11.2022) by Planning and Development (Exempted Development) (No. 4) Regulations 2022 (S.I. No. 605 of 2022).
E18
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development Act 2000 (Exempted Development) (No. 3) Regulations 2022 (S.I. No. 493 of 2022).
E19
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development (Solar Safeguarding Zone) Regulations 2022 (S.I. No. 492 of 2022).
E20
Power pursuant to subs. (2) exercised (30.03.2022) by Planning and Development Act 2000 (Exempted Development) (Number 2) Regulations 2022 (S.I. No. 151 of 2022).
E21
Power pursuant to subs. (2) exercised (21.02.2022) by Planning and Development Act (Exempted Development) Regulations 2022 (S.I. No. 75 of 2022).
E22
Power pursuant to subs. (2) exercised (30.04.2021) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2021 (S.I. No. 208 of 2021).
E23
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2021 (S.I. No. 115 of 2021).
E24
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) Regulations 2021 (S.I. No. 114 of 2021).
E25
Power pursuant to subs. (2) exercised (7.08.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2020 (S.I. No. 293 of 2020).
E26
Power pursuant to subs. (2) exercised (27.03.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020 (S.I. No. 92 of 2020).
E27
Power pursuant to subs. (2) exercised (13.02.2020) by Planning and Development (Amendment) Regulations 2020 (S.I. No. 46 of 2020).
E28
Power pursuant to subs. (4A) exercised (8.02.2020) by Planning and Development Act 2000 (Exempted Development) Regulations 2020 (S.I. No. 45 of 2020), in effect as per reg. 1(3).
E29
Power pursuant to subs. (2) exercised (1.07.2019) by Planning And Development Act 2000 (Exempted Development) (No. 2) Regulations 2019 (S.I. No. 235 of 2019), in effect as per reg. 1(3).
E30
Power pursuant to subs. (4A) exercised (25.01.2019) by Planning And Development Act 2000 (Exempted Development) Regulations 2019 (S.I. No. 12 of 2019), in effect as per reg. 1(2).
E31
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 3) Regulations 2018 (S.I. No. 31 of 2018).
E32
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018).
E33
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) Regulations 2018 (S.I. No. 29 of 2018).
E34
Power pursuant to subs. (2) exercised (17.12.2015) by Planning and Development (Amendment) (No. 4) Regulations 2015 (S.I. No. 582 of 2015).
E35
Power pursuant to section exercised (24.06.2013) by Planning and Development (Amendment) Regulations 2013 (S.I. No. 219 of 2013).
E36
Power pursuant to section exercised (8.09.2011) by Planning and Development (Amendment) (No. 2) Regulations 2011 (S.I. No. 454 of 2011).
E37
Power pursuant to section exercised (10.07.2008) by Planning and Development (Amendment) Regulations 2008 (S.I. No. 256 of 2008).
E38
Power pursuant to section exercised (2.07.2008) by Planning and Development Regulations 2008 (S.I. No. 235 of 2008).
E39
Power pursuant to subs. (2) exercised (28.02.2007) by Planning and Development Regulations 2007 (S.I. No. 83 of 2007).
E40
Power pursuant to section exercised (14.07.2005) by Planning and Development Regulations 2005 (S.I. No. 364 of 2005).
E41
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E42
Previous affecting provision: subs. (1)(aa) inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11, S.I. No. 214 of 2014; substituted (1.10.2022) as per F-note above.
E43
Previous affecting provision: subs. (1)(ia) inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(ii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2); substituted as per F-note above.
E44
Previous affecting provision: similar amendments to those made by 2011 Act made by Planning and Development (Amendment) Act 2010 (30/2010), s. 5, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
Cases
O’Mara & Anor v. Morrison
[2003] IESC 53
JUDGMENT of Mr. Justice Geoghegan delivered the 13th day of October 2003 [Nem Diss]
The respondents are the owners and occupiers of a substantial house with grounds in Dalkey, Co. Dublin. At the time of purchase a total price of IR£1,010,000 was expressly apportioned so that IR£120,000 of the total purchase price was attributed to the benefit of certain covenants and easements. The purpose of the covenants was essentially to secure privacy for the respondents and they were, therefore, highly restrictive of development. Alleged breaches of these covenants have led to this litigation.
The case comes before this court by way of appeal from an order of the High Court (Kelly J.) made the 14th of February, 2003. In the High Court it was sought to injunct intended works for the purposes of widening a driveway from the public road which serviced both the respondents’ house and a house on the retained lands owned and occupied by the appellant. A mandatory injunction was also sought with a view to reinstating a hedge which had already been removed.
In effect there were three issues before the High Court. First of all it was alleged that these works contravened the protective covenants. Secondly, there was an issue as to whether planning permission was required for the carrying out of these works. That second issue, although ruled on in a kind of provisional way in the judgment of the learned High Court judge was to some extent a moot for the following reasons. Without prejudice to the view of his advisers that planning permission was not necessary the appellant did in fact apply for planning permission. That permission had not been granted as of the date that the proceedings were instituted and for that reason an injunction under the Planning Acts was sought as an alternative remedy to an injunction for the breaches of covenant. As of the date of hearing in the High Court a permission had been issued by the local planning authority but this was under appeal to An Bord Pleanála. It emerged at the hearing of this appeal that An Bord Pleanála has overruled the decision of the planning authority and has refused the permission.
The appellant having chosen to go the planning permission route, I do not consider that this court should now make any ruling as to whether planning permission was or was not necessary. It seems to be more or less conceded that despite the observations of the learned High Court judge, the planning issue did not loom large at the High Court hearing because of the fact that permission had in fact been granted. What particularly concerns me about expressing any view on it is that under s. 5 of the Local Government (Planning and Development) Act, 1963 and the equivalent replacement section in the current legislation the question as to what in any particular case is or is not “development” or “exempted development” has to be referred to and decided by Bord Pleanála. There is then an appeal from that decision to the High Court. I am doubtful that that procedure can be by-passed in the manner attempted in this case, but at any rate I do not find it necessary to express any view on it. In my view, the terms of the covenants determine this appeal. To an extent however the planning question may arise in relation to the obligations under the covenants also and I will be returning to that in due course.
The third issue related to whether a particular wall was a party wall or not the relevance of this being whether the appellant was a trespasser in relation to certain aspects of the works. The learned High Court judge did not find it necessary to make any decision on that point. If this court were to find it necessary that the party wall issue be determined it would have to send the case back to the High Court.
The learned High Court judge, in his judgment, raises the question as to whether there might in fact be a fourth issue. At p. 12 he said the following:
“I myself raised a fourth issue which seemed to me to be one of considerable practical importance from the point of view of carrying out development to the lower part of the driveway. I found it difficult to see how the driveway could be widened without the defendant acting in excess of his right of passage and repassage over the existing lower driveway which is in the ownership of the plaintiffs. I thought it unlikely that works of that type could be carried out without trespass and so would be an interference with the plaintiffs’ rights in respect of that stretch of the driveway. The evidence of the plaintiffs’ architects was to the effect that it would be quite impossible to carry out the works contemplated without such interference.”
While there seems to be considerable force in the observations of the learned judge, I do not think that it would be appropriate to broaden the issues on the appeal and in that regard even the plural is doubtfully appropriate because in my view the only matter which this court can now determine is whether the learned High Court judge was correct or incorrect in his view that the proposed works would constitute breach of covenant.
Although the case lasted several days in the High Court with oral evidence, the only factual matters, apart from general explanation of the geography of the property which needs to be elaborated on in this appeal is certain relevant correspondence between the parties.
The problems began with a relatively innocuous letter of the 24th of October, 2001 from the appellant’s architect, Mr. Chris Ryan, to the respondents’ architect, Mr. Desmond Crean. That letter read as follows:
“Dear Desmond
Re: New driveway to Kilross House and others
Following discussions with Conor Cavanagh, the new owner of Mount Alverno and his architect, Desmond Sheehan of Sheehan and Barry, and Joe Kennedy, Eddie Irvine’s architect, we have prepared proposals for the driveway, a copy of which is enclosed.
The proposal should not affect your client much. We have made arrangements for the occupants of Kilross House to park and have access from Mount Alverno. We will be connecting into the front gate with an as yet to be decided entry system. We will also be putting in lighting in the new driveway. We will have to liaise in the lighting on the lower portion of the driveway, to the north of your client’s portion of the drive. When we have the legals wrapped up, we will be producing further details which we will pass on to you for your information and comment.
If you have any initial comments, please let me know.
Yours sincerely
Chris Ryan”
In order to understand that letter it should be explained that on what I have already referred to as “the retained lands” were three other houses “Mount Alverno” (not to be confused with Monte Alverno, the respondents’ house) “Kilross” and “The Chalet”. The same entrance serves all three of these houses together with the respondents’ house. As one drives up the driveway from the public road which is Sorrento Road in Dalkey the first house is the respondents’. The driveway up to that point is part of the respondents’ property but the occupiers of the other three houses enjoy a right of way over it. I will refer to some other geographical features when treating of later correspondence.
The letter of the 24th of October, 2001 elicited a reply from Mr. Crean dated the 2nd of November, 2001 in the following terms:
“Re: Kilross and Monte Alverno
Dear Chris
Thank you for your letter of the 24th of October, 2001 and enclosure.
I will be away from 7th to 11th with the RIAI Conference and hope to meet Phons O’Mara the following week when we
will discuss and make any comments considered relevant as soon as possible.
Yours sincerely
Desmond Crean”
Mr. Crean wrote a further letter then to Mr. Ryan dated the 19th of November, 2001 and that reads as follows:
“Your client: Kilross House
Our client: Monte Alverno
Dear Chris,
We met as promised our client Phons O’Mara on Wednesday 14th of November last and advise you hereunder of our client’s concern as follows:
1. Maintenance:
Despite previous attempts no offer has ever been made by your client for the shared costs associated with the main gates and driveway. This is an ongoing costs for a facility enjoyed by your client and others but managed and paid solely by our client.
2. Bell at Gate:
We believe this was agreed many years ago. Basically our client does not wish to be inconvenienced with any work being carried out.
3. Electrics, lights, security:
Refer to 1 above.
4. Driveway general:
Our client will be concerned about keeping the existing driveway clean of debris, sand, soil etc. from the proposed works. We would draw your attention to two problems.
(a) Excessive dirt collecting in existing gate mechanical system at base and causing the gates to not operate.
(b) At present an acceptable amount of water cascades down the driveway. It would be of some concern if this is increased by the new hard surface. We strongly suggest you consider drains across the new driveway taken to the surface water system to prevent a greater increase of water which if increased will be like a river on the main lower driveway.
5. Foundations:
We trust there will be no interference of existing walls to Monte Alverno. We should be advised if there will be any disturbance.
6. Pedestrian gate to Monte Alverno:
We note a new wall to be constructed and is shown abutting the side pillar of the pedestrian gate. We would like to agree a detail of this proposal.
7. Disturbance:
Basically our client wishes to be left alone and not disturbed.
At present he acts as an answering service for your client and others on the site, despite meetings to resolve same many years ago.
8. Fees:
We indicated some fee involvement as our client will not meet same we indicated £300 or thereabouts already we have spent four hours not to mention previous meetings over the years. If we are to be involved we wish to be paid monthly based on a monthly time basis when the above reaches £500 net. Our hourly charge will be £120 for a principal and £60 for staff members as appropriate. Finally, the above points are brief and there may be other issues that will need addressing. We await hearing from you.
Yours sincerely
Desmond Crean”
It is obvious that as of that stage the parties were in civilised correspondence and no serious dispute had arisen. All that changed with the next letter from Mr. Ryan to Mr. Crean dated the 22nd November 2001. There were eight bullet points in that letter and I do not find it necessary to cite it in full. To a certain extent it was simply dealing with points that have already been referred to, but what was new was the third point in the letter which was headed “Electrics, lights, security”, etc. and it read as follows:
“It is our client’s wish to widen the lower stretch of the right of way, making the whole approx. 5m wide. (See attached sketch). In the immediate short term we intend to remove the vegetation to the back which work will start next week. We will be running our services between the gate and Kilross House and Mount Alverno in this area. We are aware that your client has placed his security cameras, lighting and associate cabling on our client’s property in this area. These will be affected by the works and we must agree on a new position for them. We would be grateful for your suggestions on this.”
The letter ended with the following sentence:
“As some works are being started next week, we would appreciate any comments or suggestions as soon as possible.”
The map annexed to that letter showed very extensive changes to the driveway. While the object was to widen it quite substantially that involved considerable work. It would seem reasonably obvious that the appearance and character of the driveway would be significantly changed.
That letter of the 22nd of November was replied to by a letter of the 27th of November, 2001 from Mr. Crean to Mr. Ryan and it read as follows:
“Re: Monte Alverno
Dear Chris
I write to advise my client’s deepest concern regarding many proposals suggested in your letter dated 22nd of November 2001.
We have been asked to refer the matters of boundaries, removal of trees, shrubs, lights, cameras, widening of driveway to our client’s solicitor to check your client’s right to carry out such work without our client’s consent on or near our client’s property.
I suggest that both of our clients’ solicitors agree the lease legalities before any work is carried out.
I trust no work will start on the areas referred to without advising us.
Yours sincerely”
In actual fact because it appeared that the works were going ahead these proceedings were instituted on the 30th of November, 2001 and on the same day an interim injunction was granted by the High Court (Lavan J.). That injunction subject to an agreed variation continued until the date of hearing.
Apparently, the letter of the 22nd of November, 2001 was not received by Mr. Crean until Monday the 26th of November. In relation to the reaction to that letter Kelly J. at p. 9 of his judgment says the following:
“I accept the plaintiffs’ architect’s evidence when he says that he was greatly surprised by this letter because included with it was a single sheet plan which represented in diagrammatic form the proposal which was made for the first time in the letter concerning works to be done on the lower part of the driveway. The plaintiffs’ architect immediately became concerned and contacted the first-named plaintiff.”
I have already observed that the lower part of the driveway was owned by the respondent, the other house occupiers having merely a right of passage over it. The upper part of the driveway however was owned by the appellant. What complicated matters was that the appellant also owned as part of his take, a strip of land adjoining the lower part of the driveway.
The next part of the High Court judgment is also relevant and it reads as follows:
“I accept the evidence of the plaintiffs’ architect that he met the defendant’s architect on site on the 29th. At that stage a contractor had moved in and was carrying out excavations of part of the driveway which is in the ownership of the defendant. A considerable amount of excavation had been done to lead to a widening of that part of the driveway. A number of shrubs and trees of about twenty feet in height had been removed. These trees gave considerable privacy to a number of houses. Deep concern was expressed by the plaintiffs’ architect to the defendant’s concerning what had happened and he also resurrected an issue which had figured previously in discussions namely, his view that planning permission was required for this work. He took that view because in his opinion Kilross House was a protected structure and he said that any part of a site or building or structure which is protected requires planning permission. The defendant’s architect was of a different view.
The plaintiffs’ architect gave evidence that the proposals in respect of the widening of the driveway at the lower end could not be carried out without affecting the existing driveway owned by the plaintiffs. He said that it would be impossible not to disturb the existing driveway while carrying out the proposed works.”
The learned judge went on to point out that the plan which accompanied the letter of the 22nd of November in addition to showing the proposed works also showed a low wall. There was a dispute as to whether that wall was a party wall or not or whether it was the property of the appellant. It has been pointed out in counsel’s submissions that the expression “party wall” had several meanings but nothing turns on that here. Either the wall was the sole property of the appellant or the respondents had some ownership interest in it. As I have already pointed out this court cannot be concerned with this issue since it was never determined in the High Court.
Did the proposed works contravene the covenants? The learned High Court judge held that they did. As to whether he was right or wrong in that view is the only question in my opinion which this court can now consider. It is, therefore, immediately necessary to set out the relevant covenants in full.
The deed in which the relevant covenant is contained is an indenture of conveyance and assignment dated the 11th of December, 1992 and made between Renata Elisa Coleman (otherwise Renata Eliza Coleman) of the first part, Kilross Estates of the second part and Alphonsus O’Mara and Claudia O’Mara of the third part. The restrictive covenant is contained in paragraph 1.4 of the conveyance and reads as follows:
“The First Vendor and the Second Vendor HEREBY JOINTLY AND SEVERALLY COVENANT with the purchasers so as to bind the owners and occupiers for the time being of the Retained Lands and so that this Covenant shall be for the benefit and protection of the Sold Lands, as appurtenant rights in relation thereto and every part thereof and shall enure for the benefit of the purchasers and the persons deriving title under them to the Sold Lands or any part thereof, THAT;
1.4.1 Development of the Retained Lands (save and except the Pink Lands) shall be restricted to:
(a) the extension, renovation, alteration or rebuilding of each of the existing houses respectively known as ‘Mount Alverno’, ‘Kilross’ and the ‘Chalet’ provided that such works shall not involve any change of use. AND
(b) the construction of an additional two houses each to be used as a single private dwelling house only, each to comprise an area not exceeding four thousand square feet and each to be located and constructed so as to maintain the level of privacy of the Sold Lands as at present existing in relation to same.
1.4.2 No development whatsoever shall be carried out within the boundaries of the Pink Lands SAVE the construction and use of a driveway leading from the Right of Way area shown hatched black on Map 2 annexed hereto the line of which driveway may encroach on the Pink Lands north of the points marked “G” and “H” on said Map 2.”
An immediate problem arises as to what is meant by ‘Development’ in the deed. The learned High Court judge suggests two alternative interpretations. The first of these which is the one which finds favour with him, is that it is self-defining having regard to the wording of the deed. The second is that it had the same meaning as the meaning which it has under the Planning Acts. In the written submissions lodged on behalf of the appellant in the High Court a third alternative is suggested which would certainly in my view be open to argument. It is suggested that development meant development within the meaning of the Planning Acts but excluding “exempted development”. A fourth possibility might be to give the word “development” its ordinary dictionary meaning or to put it another way the kind of meaning it would have been given if contained in a deed before 1963. However, I am quite satisfied that this last meaning could not be the correct one in this case having regard to the terms of the covenant and at any rate it was never argued. As I understand it from the written submissions and what was argued at the appeal the self-defining interpretation applied by the learned High Court judge is not seriously in dispute between the parties. What is in dispute is the learned High Court judge’s application of his own definition. The appellant contends that the proposed works fall within the expression
” the extension, renovation, alteration or rebuilding of each of the existing houses respectively known as ‘Mount Alverno’, ‘Kilross’ and ‘The Chalet’ provided that such works shall not involve any change of use.”
The respondents contend that the works in controversy in this case fall well outside that expressly permitted limited development and they further contend that the works cannot be implicitly permitted by the deed as being merely ancillary to the permitted development.
The trial judge did not agree with those submissions put forward on behalf of the appellant. To a certain degree the view of the learned trial judge has been borne out by the ultimate refusal of the permission by An Bord Pleanála. Clearly, An Bord Pleanála took the view as did the learned trial judge that this was development which substantially altered the nature of the driveway and its environs. It would appear also that the learned trial judge was influenced by the fact that in relation to the lower part of the driveway what was involved was not the extending of the width of a driveway owned by the developer but rather adding a strip of the developer’s own land onto a driveway over which he had merely a right of way.
The written submissions lodged in this court on behalf of the appellant have rather unfairly characterised the views of the learned High Court judge as so restrictive as to lead to absurdities which might prevent quite minor works in the future. There are two points which I would make in relation to this submission. First of all, I do not agree that the judgment of the High Court can be characterised in that way. Secondly, if and in so far as the learned High Court judge expressed views that were not strictly relevant to the facts of this case he was merely speaking obiter. Counsel for the appellant at the oral hearing of this appeal was inclined to encourage this court to go a step further and to lay down the parameters of the covenants so as, as it were, to provide the appellant with more satisfactory title deeds into the future. It would be both wholly inappropriate and wholly unwise for this court to accept that invitation. Any problems that may arise out of ambiguity and draftsmanship can only be determined on a case by case basis. But any decision of this court should relate only to the actual works involved in the litigation.
It is important to reflect on the purpose of the covenant. It is not there to prevent unauthorised development. The Planning Acts already provide adequate remedies for that purpose. It is there to prevent development which would otherwise be authorised under the Planning Acts. Obviously, there is an overlap but the primary concern of the respondents when purchasing the property would have been to protect themselves from development for which permission under the Planning Acts might in fact be given.
I take the view that the appeal ought to be dismissed. As to whether there should be any alteration in the terms of the order made by the High Court in the light of the subsequent refusal by An Bord Pleanála can be discussed with counsel.
Carman’s Hall Community Interest Group & ors -v- Dublin City Council
[2017] IEHC 544 (11 October 2017)
JUDGMENT of Mr. Justice Binchy delivered on the 11th day of October, 2017
1. By these proceedings the applicants seek an Order of certiorari by way of an application for judicial review quashing a decision and Order of the Deputy Chief Executive of the respondent dated 28th October, 2016 (the “Order”). The Order purports to authorise a change of use and the refurbishment of inter alia, a premises formerly used as a Parish Centre and known as St. Nicholas of Myra and situated at Carman’s Hall, Dublin 8 (“the Premises”), and in the ownership of the Dublin Archdiocese, in order to provide accommodation for persons experiencing homelessness. It was made by Mr. Jim Keogan, then Assistant Chief Executive of the respondent, and acting pursuant to powers delegated to him by the Chief Executive, Mr. Owen Keegan and is in the following terms:-
“As the officer with the delegated responsibility for planning and development in Dublin City Council’s administrative area I endorse the recommendation of the Senior Executive Officer above requiring that a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street, be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is an exempted development having regard to the provision of the Planning and Development Act 2000, s. 179(6)(b) which states inter alia development by a local authority is exempt if the development “is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action”.”
2. It is important to stress that these proceedings are concerned only with the Premises, and not with the other premises at Ellis Quay and Little Britain Street/Green Street referred to in the Order.
3. As is apparent from the Order, it was based upon the recommendation of a Senior Executive Officer in the housing and residential department of the respondent, dated 28th October, 2016. That officer is Ms. Máire Igoe, and in her recommendation, Ms. Igoe states that the respondent is unable:-
“To meet the needs of a growing cohort of vulnerable adults and families presenting to Dublin City Council’s Homeless Services due to the unavailability of suitable accommodation in the Dublin region. The current high levels of presentations of homeless services as well as the growing number of individuals and families being encountered on the streets indicates that this situation is going to get worse during the winter of 2016 and beyond. In addition to adults experiencing homelessness the situation for families is precarious as the numbers of families in need of emergency accommodation is outstripping the available contracted provision in place.
The rough sleeper count in Spring 2016 showed at least 102 people sleeping rough in the Dublin region. In July 2016 alone 97 new families presented as homeless bringing the total number of families in emergency accommodation to 993 with 2,020 children. All the Dublin local authorities are experiencing a similar crisis in their administrative areas.
Due to the large number of families requiring emergency accommodation which had resulted from a range of factors including the loss of private rental accommodation and family breakdown the Dublin Regional Homeless Executive (on behalf of the four Dublin LA’s) has had no choice but to use commercial hotels settings as a form of temporary shelter as no alternative housing options have been available. The use of commercial hotels in this way is an unstable and unsuitable form of accommodation for vulnerable families.
The availability of hotel rooms for this use is now at saturation point particularly due to the upturn in the Dublin tourism sector. This is a critical situation which requires an urgent emergency response in order to provide the accommodation necessary to prevent fatalities and/or serious harm to adults and children at serious risk of rough sleeping in Dublin during 2016/2017.
Dublin City Council’s Housing and Residential Department are seeking approval to take immediate humanitarian action to open the homelessness facilities as set out below in order to ensure beds are available for all persons who are at risk of rough sleeping.
A proposal to change the use of the existing buildings outlined below on a temporary basis has been put forward as part of the emergency response. The provision of these emergency accommodation units is temporary in nature pending a more sustainable long term option being provided for this vulnerable group through the provision of supported long term accommodation or permanent housing options (social housing/private rented (HAP)).”
4. Ms. Igoe then concludes with a recommendation as follows:-
“Given the current lack of suitable accommodation to cater for persons experiencing homelessness in the Dublin area as outlined above and given that the situation is considered by both the executive and elected members of Dublin City Council to be of a level that is considered an emergency with immediate action required, I recommend that in order to alleviate this unacceptable situation a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is exempted development having regard to the provisions of the Planning and Development Act, 2000 s. 179(6)(b) which states inter alia development by a local authority is exempt if the development is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action.”
Background
5. In the statement of grounds, the first applicant is described as an association comprising local residents of the Liberties area of Dublin 8, being persons directly affected by and concerned with the proposed development of the Premises. The second applicant is described as a Residents Association comprising exclusively residents of Michael Mallin House, Vicar Street and Carman’s Hall, the combined buildings of which are home to 164 residents including 46 children under the age of 16 years. The third applicant is described as a youth and community worker in the employment of the South West Inner City Network under the aegis of the Department of Social Protection, and who works in the immediate local area of the Premises. In this role the third applicant was formerly based at St. Nicholas’s of Myra Parish Community Centre, Carman’s Hall, Dublin 8, i.e. the Premises, until 8th November, 2013. She was awarded the 2016 Dublin City Council Good Citizen Award for her work in the children and youth category.
6. Issues have been raised by the respondent in the proceedings in relation to the legal capacity of the first and second named applicants. I will address those issues in due course, but suffice to say at this juncture that since no issue arises in relation to the capacity of the third named applicant, there can be no obstacle to the bringing of these proceedings by her on these grounds.
7. The proceedings are grounded upon three affidavits: an affidavit of Ruth Campbell sworn 4th December, 2016 on behalf of the second applicant; an affidavit of the third named applicant sworn on the same date; and an affidavit of a Raymond O’Malley, civil engineer and town planner dated 30th November, 2016. Ms. Campbell describes herself as a community volunteer and chairperson of the Michael Mallin House Residents Association. She says that Michael Mallin House is a local authority flat complex made up of two buildings, one of which is within one hundred metres of the Premises and the other of which is just another few metres away. She says that she has lived in Michael Mallin House for twenty-five years with her family.
8. Ms. Campbell states that the Premises was, for a period of twenty-five years until it closed in November 2013, used as a Community Centre. She says that on any given day as many as 450 adults and children made use of the Premises for a wide range of purposes, including a breakfast club to feed disadvantaged children, a homework club, the provision of meals for senior citizens, evening classes, adult training on drug awareness, community development, the local community policing forum and other general uses by associations and organisations. The Premises was closed owing to accessibility issues and because it was not compliant with fire regulations. Ever since then, the residents in the area have campaigned to have the Premises reopened and have sought funding from the relevant authorities to attempt to bring the Premises up to the applicable regulatory standards.
9. Ms. Campbell describes in some detail the importance of the Premises when it was open for use as a Community Centre, on account of the lack of facilities in the Liberties, for children in particular. Since its closure, community activities have been severely restricted because there is no other community facility in the area. In her grounding affidavit, Ms. O’Connor describes the closure of the Premises in 2013 as being a “devastating blow” for the local community because people have nowhere local to come together to run events, as in the past. Both Ms. Campbell and Ms. O’Connor aver that they and others had been seeking assistance from local (elected) representatives in Dublin City Council in order to secure the necessary resources to have the Premises reopened for the benefit of the community and that as recently as October, 2016, Councillor Críona Ní Dhálaigh was in correspondence with both the Archdiocese and the Parish Priest, Fr. Martin Dolan in this regard. Ms Campbell refers to an email to Cllr. Ní Dhálaigh of 13th October, 2016 in which Fr. Dolan stated that “the Parish has been working very hard for the last almost three years to get the Parish Centre open again. In the near future I will be in touch with you again to discuss the progress.”
10. Ms. O’Connor, the third named applicant, avers in her grounding affidavit that on 24th October, 2016 she was passing the Premises when she noticed a large team of contractors working at the building. Over the course of the day, she says, rumours circulated that the Premises was to be converted for use as a hostel with 65 bed spaces for men. She contacted Dublin City councillors, but they had no knowledge of the purpose of the works. Following enquiries however, it was established that the respondent had indeed taken the decision to convert the Premises for use as accommodation for homeless persons. It transpired that the respondent had made contact with the parish authorities in May, 2016 to explore the possible temporary use of the Premises as a homeless shelter. The respondent made a presentation to the parish authorities in May 2016, presenting its model for the provision of services to the homeless, contained in a document entitled Pathway to Home ,and explaining how it (the respondent) operates to provide emergency accommodation and support services for homeless persons and how quality standards and good neighbourhood relations are a prerequisite for the commissioning and establishment of new facilities. The respondent’s proposals were received positively by the parish authorities, and the respondent prepared a draft lease which issued to the parish authorities on 11th August, 2016. Following discussions, agreement in principle was reached in late August, 2016. All of this information was given in a reply dated 30th November, 2016 given by the respondent (through a Mr. Daithi Downey, Deputy Director and Head of Policy and Services Delivery, Dublin Regional Homeless Executive (“DRHE”) to a query put by Councillor Ní Dhálaigh. The DRHE is a shared service operating under the aegis of the respondent, as lead statutory authority in the Dublin region, in respect of the co-ordination of responses to homelessness. In this reply, Mr. Downey (who also swore affidavits in these proceedings) states that the formal lease itself was signed on 28th October, 2016. However, in his second affidavit of 14th December, 2016 Mr. Downey says that the lease was signed on 28th September, 2016. No copy of the lease itself was exhibited by the respondent in the proceedings.
11. The information given to Councillor Ní Dhálaigh on 30th November, 2016 may be contrasted with a response to a motion of Councillor Ni Dhálaigh which she tabled for a meeting of the elected representatives of the respondent on 3rd October, 2016. At that time Councillor Ní Dhálaigh was asking the respondent to facilitate a meeting with the Dublin Archdiocese with a view to trying to progress the reopening of the Premises as a Community Centre. In his reply, Mr. Brendan Kenny, Assistant Chief Executive of the respondent stated that:-
“Officials did meet with the Dublin Diocese on a number of occasions following the closure of this premises a couple of years ago, with a view to the possibility of the Diocese handing it over to Dublin City Council for general community use. Agreement to such a handover was not achieved and this (vacant) premises remains in the ownership of the Dublin Diocese”.
12. On 11th November 2016, Ms. O’Connor wrote to the Chief Executive of the respondent. This is a lengthy letter in which Ms. O’Connor explains in some detail the effect of the closure of the Premises as a Community Centre, and also sets out her concerns in relation to the provision of accommodation for homeless persons at the Premises. While in this letter Ms. O’Connor expresses concerns to which she also deposes in her affidavits in these proceedings, nonetheless it is of some assistance to identify those concerns as expressed in this letter, at this juncture:-
“The proposed hostel is in the very same building as the community crèche which cares for over 100 infants from the local area on a daily basis. The crèche is there 20 years and has only just had its lease renewed for another five years, in October 2016. The residents of the immediate area depend on the crèche and are very concerned for their children. The crèche used to share with the Community Centre, until the Church forced it to shut down in November 2013. We have been campaigning ever since to have the Centre reopened. The hostel will now share the ground floor with the crèche and the hostel windows directly overlook the children’s play yard from the first floor. Both the children and the hostel users will be coming and going from the same building at the same time in the mornings and evenings. They have different access doors but it is still the same building. It is well known that many inner-city hostel users have drug and alcohol addiction problems. It is clear that many of the young children will pass the hostel users every single day. From experience, we expect anti-social groups congregating in the immediate area, the surrounding streets and laneways engaging in drug and alcohol abuse. This will bring safety concerns for residents and create a danger to children from used needles, drug paraphernalia and broken alcohol bottles. We cannot understand why the Council is seeking to operate a hostel for the homeless in the very same building as a crèche, and also just feet from the front doors of long established residences of houses and flats in Carmel’s Hall and of Michael Mallin House.
We cannot understand why the Council is concentrating all of its homelessness services in the same small area in and around the Liberties. There are already over 666 homeless shelter beds within a short distance of this location but there are very few places in other areas of Dublin City. We cannot understand why the Council has closed the nearby Brú Aimsir hostel on Thomas Street and spent money opening another one in the St. Nicholas of Myra Centre. The Council is creating its own problem by closing beds in one location and using it to justify opening yet another hostel.”
Ms. O’Connor then continues in this letter to complain about the failure of the Council to consult with the local community about the development or to provide any information in relation to the same.
13. The Chief Executive replied to Ms. O’Connor’s letter, by letter of 14th November, 2016. Since this letter sets out the respondent’s position as well as any other document in these proceedings, it is worth quoting from it extensively. In relation to the concerns raised by Ms. O’Connor he says the following:-
• “There is an urgent need to provide emergency accommodation for the 150 or so individuals, who are currently sleeping rough on the city’s streets, in advance of the winter period.
• In addition to the need to cater for these individuals the Brú Aimsir temporary hostel, which was opened in October 2015, has to close early in 2017. This building is owned by the Digital Hub Development Agency and was only leased to the Council for the 2015/2016 winter period. The lease was extended to allow Brú Aimsir to continue in use beyond April 2016 but the City Council must vacate the building early in 2017 to facilitate planned redevelopment of the site.
• A total of three new temporary hostels are being developed to provide additional emergency accommodation and to allow for the closure of Brú Aimsir. Their [sic] are located at Carmel’s Hall, at the former Bargain Town premises at 7-9 Ellis Quay, Dublin 7 and at a former warehouse premises at 13-17 Little Britain Street, Dublin 7. The existing users of Brú Aimsir will probably be dispersed between the three new facilities.
• The issue of the concentration of emergency accommodation in the Francis Street area of the city should be seen in the context of the planned closure of Brú Aimsir early in 2017.
• Given the emergency situation that exists in relation to homeless persons sleeping rough in the city and the urgent need to provide additional accommodation it was considered appropriate and necessary to use the emergency planning powers of the Chief Executive.
• I accept that the failure to consult with the local community in relation to the proposed development at Carman’s Hall is a matter of considerable annoyance and indeed anger to some members of the community which is both understandable and unfortunate. At the same time, it would have been disingenuous of the Council to engage in local consultation in relation to the Carman’s Hall development when the reality was that once the lease was signed the City Council felt it had no option but to proceed with the proposed development given the scale of the homeless emergency it is seeking to deal with.
• I do not regard the Carman’s Hall premises as an unsuitable location for emergency homeless hostel. I accept however that the management regime in place must have due regard to the legitimate concerns of the local community. The City Council is prepared to facilitate a meeting/meetings between the hostel operator and the local community in an effort to address matters of concern to the local community.
• The facility of Carman’s Hall is being developed as a temporary homeless hostel. With the expected recovery in the housing market the Council is confident that it will be able to source suitable units of accommodation for homeless individuals, primarily in the private rented sector which with appropriate supports will provide suitable and sustainable accommodation for homeless individuals and allow the Council to close temporary hostels. At this stage however it is impossible to say for certain when this will happen. However, I would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Carman’s Hall facility beyond the 2017/2018 winter period.
• While Carman’s Hall is not in the ownership of the City Council, we are prepared to engage with the local community and the Archdiocese of Dublin in relation to the use of the facility once its use as a temporary homeless hostel ceases.
• Finally, the Council is not prepared to defer the opening of the Carman’s Hall facility. However, it is prepared to engage with the local community in relation to its day to day management in advance of the opening and to provide whatever additional information you require.”
14. Following upon receipt of the letter from the Chief Executive of 14th November, 2016, the applicants brought these proceedings. By order of 5th December, 2016 the applicants were given leave to apply by way of judicial review for the relief set forth at paragraph (d) of the statement of grounds, on the grounds set forth in paragraph (e) thereof. On the same date, Humphreys J. placed a stay on the Order until 24th January, 2017. However, upon application of the respondent, the stay was vacated by Noonan J. on 16th December, 2016 following upon which the Premises was immediately put into use for the provision of accommodation of homeless persons. The Premises accommodates 65 persons.
The Reliefs Sought
15. The applicants seek the following reliefs:-
(1) An Order by way of certiorari quashing the Order insofar as it relates to the Premises only;
(2) A declaration that the Order is null and void, being ultra vires the powers of the respondent, by reason of the respondent’s failure to comply inter alia with s. 178(2) of the Planning and Development Acts 2000-2016 and Part VIII of the Planning and Development Regulations 2001, as amended; and
(3) A declaration that authorisation of the proposed change of use and refurbishment works of the Premises comprises a material contravention of the Dublin City Development Plan 2016-2022; and
(4) A declaration that the Order is ultra vires and/or is invalid and of no legal effect; and/or
(5) A declaration that the Order is so irrational and/or unreasonable that it has to be unlawful and/or invalid; and
(6) A declaration that by reason of the manner in which the respondent brought forth the authorisation to proceed with the proposed development the subject of the decision impugned in the within proceedings, the applicants have been denied fair procedures and natural and constitutional justice.
16. The applicants also seek other reliefs not relevant for present purposes. The grounds upon which the reliefs are sought are as follows:-
(i) The proposed development of the Premises is a material contravention of the current Dublin City Development Plan 2016-2022.
(a) It is pleaded that the respondent failed to have regard to the requirements of s. 5.5.11, Policy QH30 and s. 16.12 of the respondent’s development plan, 2016-2022, (“the Second Development Plan”). The development of the premises should not have been authorised without an applicant for permission identifying the mandatory, specific and detailed requirements of Policy QH30 thereof. It is pleaded that there are already five existing institutional accommodation services located within 500m of the Premises and an additional seven separate social support services within the same radius. This is contrary to Policy QH30 and s. 16.12 of the Second Development Plan. It is claimed that the addition of the proposed development will comprise an undue concentration of services within the immediate area, thereby undermining the sustainability of the neighbourhood, contrary to s. 5.5.11 of the Second Development Plan. It is pleaded that neither the Order nor the recommendation of Ms. Igoe pursuant to which it was made identified the catchment area which the Premises is intended to serve and does not contain any statement regarding the management of the facility.
(b) It is also claimed that the respondent has erred in law as identifying an emergency as justifying the authorisation of a material contravention of the Second Development Plan.
(ii) The proposed development is a material contravention of the previous Dublin City Development Plan 2011-2017.
It is pleaded that the decision purportedly made by the Order on 28th October 2016 was in fact made long before the coming into effect of the Second Development Plan on 21st October 2016, and constitutes a material contravention of the respondent’s development plan 2011-2017, (“the First Development Plan”). The grounds relied upon by the applicant in relation to material contravention of the Second Development Plan are also relied upon in relation to material contravention of the First Development Plan
(iii) The Order retrospectively approves an earlier decision and works.
It is pleaded that the order purported to authorise works which had been planned and commenced at an earlier date, and in any case no later than 24th October 2016 and that accordingly the Order is ultra vires because it cannot retrospectively authorise works.
(iv) The Order is ultra vires/invalid by reason of it lacking the necessary temporal certainty required;
It is pleaded that the Order is invalid because :
(a) It fails to provide any detail as to the duration of the change of use purported to be authorised, and,
(b) It authorises a change of use which is of permanent effect and is irreversible save by way of further permission or authorisation, thereby leaving the respondent at large to continue the change of use indefinitely. It is claimed that that this is ultra vires the power of the respondent pursuant to s. 179(6) which envisages the use of such powers on a temporary basis only
(v) That there has been a denial of fair procedures in that the respondent wilfully withheld information from the public concerned, and the applicants in particular;
It is claimed that the applicants, as persons directly affected by the proposals, had an entitlement to be consulted by the respondent in connection with the same and to make submissions to the respondent in regard thereto. It is pleaded that the respondent denied the applicants their rights of public participation and accordingly denied the applicants fair procedures as well as natural and constitutional justice. It is also pleaded that the respondent wilfully and unlawfully withheld all information concerning the project’s proposals. The applicants claim that the respondent had a duty to advance its proposals for the development of the Premises by way of Part VIII of the Regulations
(vi) That the decision is so irrational as to be unreasonable.
The applicants claim there is already a proliferation of institutional accommodation and support services within the immediate area of the Premises and that the addition of a further 65 bed spaces is disproportionate and is so irrational as to be unreasonable.
17. The applicants claim that the recommendation of Ms. Igoe underpinning the Order does not evidence an emergency. While the recommendation repeatedly refers to a shortage of family accommodation, the proposed development envisages only the provision of single bed spaces. It is also pleaded that there is an insufficiency of information supplied in the recommendation of Ms. Igoe such as to justify the emergency asserted by the respondent. It is claimed that the Order relies upon out of date data so as to identify the precise and immediate nature of the alleged emergency.
18. It is further pleaded that if there is an emergency, it is one that has arisen through the failure of the respondent to effect a sufficient response to a longstanding obligation to provide housing, and in particular housing for families in its administrative area, within a reasonable period of time. The applicants claim that the respondent has failed to implement its own Rapid Build Housing programme which was authorised in November, 2015.
Statement of Opposition
19. The respondent delivered its statement of opposition on 13th December, 2016. All allegations contained in the statement of grounds are denied by the respondent in its statement of opposition. It is denied that there has been any contravention of either the First Development Plan or the Second Development Plan. It is pleaded that all local authority development is exempted development by reason of s. 4(1)(a) of the Act of 2000 and it is further pleaded that Part VIII of the Planning and Development Regulations 2001 (as amended) (the “Regulations”) have no application in circumstances where an emergency situation was deemed by the respondent to exist, and s. 179(6)(b) of the Act 2000 therefore applied. There was therefore no “application” to which policy QH30 of the Second Development Plan would apply.
20. The respondent pleads that the question of whether a proposal to provide or extend temporary homeless accommodation or support services results in an undue concentration of such uses or undermines the existing local economy, resident community or regeneration of an area is a matter of planning assessment and/or discretion of the respondent.
21. It is denied that there are five existing institutional accommodation services within 500m of the development as alleged by the applicants; the respondent states that there are only three such accommodation places within 500m of the Premises. The respondent pleads that the population within 500m of the Premises is just over 11,000 and pleads that the provision of a 65 bed homeless centre in addition to the existing 83 beds cannot be considered as an undue concentration in a catchment area of that population. The respondent also denies that there are seven separate social services within a 500m radius of the Premises, but pleads that even if there are, this is not contrary to Policy QH30 or contrary to the development standards specified in s. 16.2 of the Second Development Plan.
22. Moreover, the respondent pleads that the development is in accordance with its obligations under the Housing Acts, 1988 to 2009, with government policy for a housing-led solution to long term homelessness and the Second Development Plan itself. The respondent specifically refers to and relies upon the following sections of the Second Development Plan:-
(i) s.11.4.2 which provides :“The city council and other statutory agencies are obliged to provide appropriate accommodation and to work together to improve the range and quality of services available for homeless persons”.
(ii) Policy QH28 which provides:-
“It is the policy of Dublin City Council to support the implementation of the homeless action plan for Dublin”
(iii) Policy QH29 which provides:-
“To support the implementation of the homeless action plan framework for Dublin and support related initiatives to address homelessness.”
23. The respondent pleads that the development of the Premises is in accordance with the zoning of the lands concerned. The respondent pleads that the Second Development Plan envisages that there will be a need for an additional 2,500 residential units in the Liberties area over the life of the plan, and it is further envisaged that the homeless crisis will be eliminated through the provision of the required number of residential units across the city over the life of the development plan i.e. by the year 2022. It is pleaded that in the interim, the provision of 65 emergency bed spaces at the Premises in the context of the provision of 2,500 residential units in the Liberties area, over the next six years, and 29,500 citywide, cannot be considered to be a material contravention of the Second Development Plan.
24. It is pleaded that the First Development Plan has no bearing upon these proceedings because the Order was not made by the respondent until after the date the Second Development Plan came into effect. The respondent contends that the entry into a lease of the Premises by the respondent with the Archdiocese prior to the date of the Order did not and could not authorise the development of the Premises. The respondent denies that any works other than scoping works were carried out at the Premises prior to the date of the Order, but pleads that even if there were such works, this would not invalidate the Order.
25. It is further denied that the temporal scope of the Order is vague or uncertain in that the Order states that the change of use is temporary in nature pending a more sustainable long term option being provided through the provision of long-term accommodation or permanent housing options. It is pleaded that the temporary nature of the use of the Premises is confirmed by the fact that the lease is for a five year period with a break clause after three years. It is also pleaded that the respondent has waived any entitlement to renew the lease and that the respondent in a letter of 14th November, 2016 to the third-named applicant has stated that the respondent would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Premises beyond the 2017/2018 winter period.
26. It is denied that the Order authorises a change of use which is permanent and irreversible. It is denied that the respondent was under any obligation to consult with the applicants or the public generally in circumstances where the proposal was considered by the Assistant Chief Executive of the respondent to be necessary to deal with an emergency within the meaning of s. 179(6)(b) of the Act of 2000. It is pleaded that the plea on the part of the applicants of a denial of fair procedures is misconceived in circumstances where there is no procedure or process to which the applicants were a party. The respondent denies that there was any wilful withholding of information as alleged by the applicants or at all. It is pleaded that there is no legal basis for participation by the applicants in the decision of the respondents to make the Order.
27. The respondent denies that there is a proliferation of institutional accommodation and/or social support services within the immediate area of the Premises, and pleads that there is in fact a substantial shortage of homeless accommodation in the area and in the functional area of the respondent in general. It is therefore denied that the provision of 65 bed spaces could be considered to be disproportionate and/or unreasonable and/or irrational. It is pleaded that at present, and for the period since the previous expansion in capacity in Quarter 4 of 2015, all available temporary emergency accommodation for adults in Dublin is fully occupied and in regular use.
28. The respondent denies that the emergency has arisen through any failure on the part of the respondent to effect an efficient response to the problem of homelessness over a reasonable period of time; in the alternative, the respondent pleads that even if this is the case it is irrelevant to the requirement to take emergency action within the meaning of s. 176(6)(b) of the Act of 2000.
The Affidavits
29. As I mentioned at the outset, the proceedings are grounded upon the affidavits of Ms. Campbell, Ms. O’Connor and Mr. O’Malley. This gave rise to replying affidavits from Mr. Downey, Mr. John O’Hara, city planning officer with the respondent, Mr. Jim Keoghan, former assistant Chief Executive of the respondent, who made the Order, and Mr. Colm Moroney, administrative officer of the respondent and manager of the central placement service with the Dublin Regional Homeless Executive. These affidavits in turn gave rise to further replying affidavits from Ms. Campbell, Ms. O’Connor and Mr. O’Malley which in resulted in further exchanges of affidavits on behalf of each of the parties. In total, some seventeen affidavits were sworn on behalf of the parties in the proceedings.
30. In their grounding affidavits, each of Ms. Campbell and Ms. O’Connor described (as I have set out above) the effects of the closure of the Premises as a community centre in 2013, and the efforts that have been made to have it reopened as such. It is clear from these affidavits that the Premises had served a very useful purpose as a community centre until its closure. That is not disputed by the respondent, but nor is it an issue in the proceedings.
31. In their grounding affidavits, Ms. Campbell and Ms. O’Connor express their concerns that the use of the Premises as a 65 bed hostel for homeless persons will have multiple negative impacts which will be permanent because the Order is of no fixed duration. They each express concerns that such use of the Premises will give rise to increased problems of anti-social behaviour, as well as alcohol and drug abuse in the streets surrounding the Premises, which children traverse on their way to and from school. They say that there are already twelve homeless and social service facilities within 500m of the Premises and many more again within 1km, so there is already an undue concentration of such services in the area. Accordingly, they opine that the proposed change of use of the Premises is contrary to the Development Plan. They also complain about what they describe as the failure of the respondent to consult with the local community before embarking upon this project. They say that it is clear that the respondent knew that the project would attract huge local opposition, and that this is acknowledged by the Chief Executive of the respondent in his letter to Ms. O’Connor of 14th November, 2016. They also claim that since the respondent was exploring the use of the Premises for use as a hostel for the homeless as far back as May 2016, that the emergency relied upon by the respondent was neither sudden nor immediate, and that the respondent would have had time to go through the procedure required by Part VIII of the Regulations.
32. It should be observed that the concerns expressed by Ms Campbell and Ms. O’Connor as regards the impact of the development on the local community drew a sharp response from the respondent in an affidavit sworn by Mr. Daithí Downey dated 9th December, 2016. In his affidavit, Mr. Downey states that the affidavits of Ms. Campbell and Ms. O’Connor are “replete with exaggerated, ill-informed and prejudicial views of homeless persons”, views which the respondent rejects. Mr. Downey avers that the Premises will be serviced and maintained by the Dublin Simon Community and the Salvation Army through experienced and trained service providers who have detailed policies and protocols in place to ensure that there will not be disruption to the neighbourhood. He further avers that the lease of the Premises to the respondent requires the respondent to provide appropriate staffing resources to ensure the effective day to day management of the Premises and the respondent must comply with the ethos of the parish in its dealings with the service users and the community.
33. This in turn gave rise to further replying affidavits from Ms. Campbell and Ms. O’Connor. Ms. Campbell characterises Mr. Downey’s comments as being pejorative and offensive. She says that she is acutely aware of the challenges faced by those that are homeless, having been homeless herself during three different stages of her life. Moreover, she says she works closely with people who were formerly homeless to help them establish themselves and face their challenges. She says there is nothing exaggerated about the concerns expressed in her grounding affidavit, and that these are based on real life experiences. In her second affidavit, Ms. O’Connor also rejects Mr. Downey’s remarks and says that she too is very familiar with the problems experienced by those who are homeless, from her work in the community, for which she was awarded in 2016 the Dublin City Council Good Citizen Award. I think it important to record now that I am absolutely satisfied that the applicants bring these proceedings in good faith, and with the best of intentions for the community in which they live and serve, and that in doing so they are in no way motivated or influenced by any misguided prejudice against those misfortunate enough to be homeless.
34. In an affidavit sworn on 14th December, 2016 specifically to address the remarks of Ms Campbell and Ms. O’Connor in this regard, Mr. Downey acknowledged the contribution of Ms. Campbell and Ms. O’Connor to the community and in particular on behalf of persons experiencing homelessness. But he does not accept that the theories as identified by them in their affidavits are well founded, because the service that is to be provided at the Premises will be of the highest standard for the reasons set out already above. In both this affidavit and his previous affidavit, Mr. Downey refers to the respondents’ model of homeless services as set out in “Pathway to Home”, which I referred to earlier.. He says that a particular focus of this policy is to tackle the most significant risky and harmful homeless living situation i.e. “rough sleeping” and “street homelessness” which arise when a person does not avail of emergency accommodation and has no other shelter option available.
35. A considerable body of the affidavits exchanged between the parties is taken up with argument about the existing facilities for homeless in the vicinity of the Premises. It is perhaps somewhat surprising that there should be disagreement on what one would imagine would be a straightforward matter of fact. The respondent acknowledges that there are three facilities within a 500m radius of the Premises providing accommodation for homeless namely Viking Lodge, Back Lane Hostel and the Caretaker Hostel. However, the applicants contend that there are an additional five facilities namely the Iveagh Hostel, a Focus Ireland Hostel at John’s Lane West (but which the applicants acknowledge is closed and is now being redeveloped to provide 31 new housing units), the Merchants Quay night café, O’Shea’s Public House and a hostel known as the Backpackers Hostel. The respondents argue that the Iveagh Hostel and O’Shea’s Public House should be disregarded because they have nothing to do with the respondent. They contend that the Merchants Quay night café is a respite service only, and that people do not sleep there. They claim that the Backpackers Hostel is a commercial hostel and that there is no evidence that it is used by persons who are homeless.
36. The applicants identify some five support services that they say are used by homeless persons in the area. These are:-
• Community respite, an addiction rehabilitation service;
• The Bridge Project – a drug recovery education centre;
• Guild of the Little Flower, a facility that targets homeless and older people with food services, laundry services and social activities;
• Casadh, a drug stabilisation and progression service centre for the Dublin 8 community; and
• Castle Street Clinic, a HSE addiction services centre.
The respondent argues however that these services are not exclusively for homeless persons, but are for the benefit of the community at large.
Legislative Provisions and Provisions of Development Plan
37. At this juncture, it is useful to identify both the relevant legislative provisions and those parts of the Development Plan of the respondent relied upon in the proceedings.
Relevant Legislative Provisions
Planning and Developments Acts 2000-2014 (“the Act of 2000”)
38. Section 4 of the Act of 2000 sets out exempted developments for the purpose of the Acts:-
“4. – (1) the following shall be exempted developments for the purposes of this Act –
(aa) development by a local authority in its functional area.”
Section 15(1) of the Act of 2000 states:-
“15-(1) It shall be the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.”
Section 178 contains restrictions on development by certain local authorities and subsection (2) states:-
“178-(2) The council of a city shall not effect any development in the city which contravenes materially the development plan.”
Section 179 is entitled “Local Authority Own Development” and states:-
“(1) (a) The Minister may prescribe a development or a class of development for the purposes of this section where he or she is of the opinion that by reason of the likely size, nature or effect on the surroundings of such a development or class of development there should, in relation to any such development or development belonging to such class of development, be compliance with the provisions of this section and regulations under this section.
(b) Where a local authority that is a planning authority proposes to carry out development or development belonging to a class of development prescribed under para. (a) (hereafter in this section referred to as “proposed development”) it shall in relation to the proposed development comply with this section and any regulations under this section.”
(c) – repealed.
(d) – not relevant.
“(2) The Minister shall make regulations providing for any or all of the following matters:-
(a) the publication by a local authority of any specified notice with respect to proposed development;
(b) requiring local authorities to –
(i) (I) notify prescribed authorities of such proposed development or classes of proposed development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars plan or other information in respect thereof as may be prescribed;
(c) the making available for inspection, by members of the public, of any specified documents, particulars, plans or other information with respect to proposed development;
(d) the making of submissions or observations to a local authority with respect to proposed development.
(3) (a) The manager of a local authority shall, within 8 weeks after the expiration of the period during which submissions or observations with respect to the proposed development may be made, in accordance with regulations under subsection (2), prepare a written report in relation to the proposed development and submit the report to the members of the authority.
(b) A report prepared in accordance with paragraph (a) shall –
(i) describe the nature and extent of the proposed development and the principal features thereof, and shall include an appropriate plan of the development and appropriate map of the relevant area,
(ii) evaluate whether or not the proposed development would be consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the provisions of the development plan and giving the reasons and the considerations for the evaluation,
(iii) list the persons or bodies who made submissions or observations with respect to the proposed development in accordance with the regulations under subsection (2),
(iv) summarise the issues, with respect to the proper planning and sustainable development of the area in which the proposed development would be situated, raised in any such submissions or observations, and give the response of the manager thereto, and
(v) recommend whether or not the proposed development should be proceeded with as proposed, or as varied or modified as recommended in the report, or should not be proceeded with, as the case may be.
(4) (a) The members of a local authority shall, within 6 weeks of the receipt of the report of the manager, consider the proposed development and the report of the manager under subsection (3).
(b) Following the consideration of the manager’s report under paragraph (a), the proposed development may be carried out as recommended in the manager’s report, unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the manager’s report, or decides not to proceed with the development.
(c) For a resolution to have effect under paragraph (b)-
(i) it has to be passed not later than 6 weeks after the receipt of the manager’s report, and
(ii) in the case of a resolution not to proceed with a proposed development, it shall state the reasons for such resolution.
(5) (1) Each Act specified in the first and second columns of Part 1 of Schedule 3 is repealed to the extent specified in the third column of that Part opposite the references in the first and second columns.
(2) Each order specified in the first and second columns of Part 2 of Schedule 3 is revoked to the extent specified in the third column of that Part opposite the references in the first and second columns.
(3) Each Act specified in the first and second columns of Schedule 4 is amended in the manner stated in the third column of that Schedule opposite the references in the first and second columns.
(6) This section shall not apply to proposed development which –
(a) – not relevant,
(b) is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action.”
Planning and Regulations 2001-2015 (“the Regulations”)
39. The first article of Part VIII of the Regulations is article 80,which sets out developments prescribed for the purposes of s. 179 of the Acts of 2000-2014. Article 80(1)(k) prescribes any development other than those specified in paras. (a) to (j) (which are of no application in this case), the estimated cost of which exceeds €126,000.00, not being a development consisting of the laying underground of sewers, mains, pipes or other apparatus.
40. In an affidavit dated 9th December, 2016 sworn on behalf of the respondent, Mr. Downey states that the total cost of works carried out at the Premises to that date is of the order of €1,184,000. Accordingly, the procedures set out in s. 179 of the Act of 2000 and Part VIII of the Regulations would, in the ordinary course of events, apply to the works undertaken by the respondent at the Premises. The remainder of Part VIII of the Regulations sets out in some detail the procedures to be followed by local authorities in developments to which the Regulations apply. It is not necessary to set out those procedures here. However, it can be seen from s. 179(6)(b) that the requirement imposed upon local authorities to comply with s. 179 of the Act of 2001 and any regulations made thereunder does not apply to development which is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action, as is the case in relation to the refurbishment of the Premises by the respondent for the purposes of accommodating persons who are homeless. While the combined effect of s. 4(1)(aa) and s. 179(6)(b) of the Act of 2001 is to exempt any development of the kind described in s. 179(6)(b) from the requirements to obtain planning permission or to go through the procedure prescribed pursuant to s. 179 and Part VIII of the Regulations, that does not entitle a local authority to undertake development in contravention of its own development plan. It is clear from ss. 15 and 178 of the Act of 2000, that a planning authority has both positive and negative obligations as regards the development plan – the first being to take such steps as are within its powers and as may be necessary to secure the objectives of the development plan, and the second being not to effect any development which contravenes materially the development plan. It is common case that a planning authority remains subject to these obligations, notwithstanding that it may be exempt from any procedures to obtain permission for or secure approval under s. 179 of the Act of 2000,for the proposed development.
Relevant Provisions of Development Plan
41. It is pleaded on behalf of the applicants that the development of the Premises by the respondent is a material contravention of both the First and the Second Development Plans. The Second Development Plan came into effect on 21st October, 2016. As it happens however, the provisions of both development plans are almost identical in all material respects as regards these proceedings, save for a footnote in the First Development Plan, which does not appear in the Second Development Plan. For completeness, I set this foot note out in the next paragraph. While it is pleaded in the alternative by the applicants that the respondent is in breach of each plan, nothing turns on which plan is the relevant plan for the purpose of the proceedings. Accordingly, save for the footnote below, I will set out only those provisions of the Second Development Plan as are relevant and, for convenience, I will from this point onwards (save for in the next paragraph) refer to both plans together as “the Development Plan”.
42. The footnote in the First Development Plan referred to above stated:-
“Hostels for the care of people, such as, homeless hostels will not be allowed in areas where there is an over concentration of such facilities such as parts of the north inner city and south-west inner city in Dublin 1, 7 and 8.”
This footnote was not carried forward to the Second Development Plan. I queried counsel for the respondent about this, and in particular inquired if a conscious decision was taken not to carry the footnote forward to the Second Development Plan, or whether or not there was any record of any discussions or consideration of the issue. Following the taking of instructions, counsel for the respondent informed me that there was no indication given as to why the footnote was not carried forward to the Second Development Plan. It appears that from the very first draft of the Second Development Plan, there was no corresponding content in the Second Development Plan.
Section 5.5.11 Homeless Services
43. The City Council and other statutory agencies provide appropriate accommodation and work together to improve the range and quality of services available for homeless persons. An over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. A coordinated approach to the provision and management of these facilities as well as their spread across the City is important.
44. But it is the policy of Dublin City Council:-
QH29 to support the implementation of the Homeless Action Plan Framework for Dublin and support related initiatives to address homelessness.
QH30 to ensure that all proposals to provide or extend temporary homeless accommodation or support services shall be supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. All such applications shall include: a map of all homeless services within a 500m radius of the application site, a statement on the catchment area identifying whether the proposal is to serve local or regional demand; and a statement regarding the management of the service/facility.
16.12 Standards – Institutions/Hostels and Social Support Services
An over-concentration of institutional hostel accommodation, homeless accommodation and social support institutions can potentially undermine the sustainability of a neighbourhood and so there must be an appropriate balance in the further provision of new developments and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum. Accordingly, there shall be an onus on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity, or the regeneration of the area.
All such applications for such uses shall include the following:-
• A map of all homeless and other social support services within a 500m radius of the application site
• A statement on catchment area, i.e. whether a proposal is to serve local or regional demand
• A statement regarding management of the service/facility.
45. As to the zoning of the lands on which the premises are situate, the zoning is categorised as objective Z1 which includes buildings for the health, safety and welfare of the public. It is common case that the use of the Premises for the accommodation of homeless persons would be permitted by the applicable zoning objective.
Discussion and Decision
46. These proceedings are concerned with one of the most pressing and significant social issues facing many societies today. Homelessness has always been an issue for society, but it is perplexing that in an era of unprecedented prosperity (notwithstanding the recent financial crisis), it should continue to present as a problem to any significant degree at all. That this is so is undoubtedly due, at least to a significant degree, to the underlying complexity behind the reasons that give rise to homelessness. The reasons for homelessness are manifold, and this is addressed by Mr. Downey in his second affidavit wherein he avers that the DRHE, having reviewed the records of those presenting as homeless over separate months in 2015 and 2016, identified the key reasons giving rise to homelessness in recent times. These are: service of notices to quit in private tenancies, overcrowding and relationship breakdown. The DRHE identifies that over two thirds of family households presenting as homeless in Dublin did so because of tenure insecurity caused by increased rates of rent inflation and notices of rent increases that were unaffordable. The DRHE has devised a very comprehensive policy to address homelessness in its Pathway to Home strategy. In addition, Development Plan has clear objectives to address homelessness, and policy QH29 specifically states that it is the policy of the respondent to support the homeless action framework for Dublin (which is the plan set out in Pathway to Home).
47. It is apparent from the face of the Order that it was made in order to address what the Assistant Chief Executive considered at the time to be an emergency in the provision of accommodation for the homeless. The affidavits sworn on behalf of the applicants grounding these proceedings do not dispute that there is a crisis or an emergency in the provision of homeless accommodation. However, this is put in issue by the applicants in paragraph (E)(34) of the statement of grounds under the heading “the decision is so irrational as to be unreasonable”, as summarised above. Notwithstanding therefore that the issue is not raised by the applicants in their affidavits, it is necessary for me to address the issue even though, to put it mildly, it can hardly be gainsaid that there was at the time and there remains now a crisis in the Dublin city area in the provision of accommodation for persons who are homeless
48. In his affidavit of 14th December, 2016, Mr. Downey refers to and exhibits the respondent’s Homeless Action Plan Framework for the period 2014-2016, contained in “Pathway to Home”. Mr. Downey says that the primary emphasis of the Pathway to Home strategy is on securing a speedy exit from a homeless living situation to independent living in a tenancy (with support as required). He says that for the period January – September 2016, a total of 1,241 moves to tenancies were provided for homeless households in Dublin. He avers:-
“A particular focus for Pathway to Home services is on tackling the most significantly risky and harmful homeless living situation that manifests in Dublin. This is commonly described as “rough sleeping” and “street homelessness” whereby a person is not availing of emergency accommodation provision and has no other shelter option available. Core to reducing the extent of this living situation is the provision of a sufficient capacity of available emergency accommodation and the quality of its service delivery.”
49. Mr. Downey then goes on to provide some statistics in relation to homelessness in Dublin. He says that in the period between September 2015 and September 2016, the total population in homeless accommodation in Dublin increased from 3,673 persons (comprising 2,330 adults and 1,343 children) to 5,053 persons (comprising 2,988 adults and 2,065 children).
50. Mr. Downey refers to a “rough sleeping count” undertaken by the respondent on the night of 22nd November, 2016 into the morning of 23rd November, 2016 which identified 142 persons sleeping rough. In addition, on that night, 77 persons accessed the Merchant’s Quay Ireland night café, which Mr. Downey says is not a night shelter but provides respite to persons who do not access emergency accommodation. He says that the proposed development of the Premises, coupled with the development of the other facilities at Ellis Quay and Little Britain Street/Green Street, will increase emergency accommodation capacity by 230 bed spaces in Dublin. He says that:-
“The proposed development constitutes immediate humanitarian action to open homeless facilities to ensure beds are available for all persons who are at risk of rough sleeping with the aim of preventing fatalities and/or serious harm.”
51. In an affidavit sworn on 21st December, 2016 Mr. Colum Moroney, Manager of the Central Placement Service with the DRHE, identifies the number of people refused a bed in Dublin city after the allocation of all beds in emergency accommodation facilities during the period between 25th November, 2016 and 15th December, 2016. During this period, there was a total of 502 refusals of accommodation ranging from the lowest number of 9 on 9th December, 2016 to the highest number of 39 on 6th December, 2016. All of the above clearly demonstrates that there was, both on the date of the Order and thereafter a crisis in the provision of emergency accommodation for homeless persons. This was referred to in the recommendation of Ms. Igoe of 28th October, 2016 to the Chief Executive of the respondent.
52. The applicants however argue that the respondent caused or contributed to this emergency by failing to effect its Rapid Build Housing programme in a timely manner. This is addressed by Mr. Downey in his second affidavit, who says that this allegation is factually incorrect, and that the respondent has (as of the date of his affidavit, 14th December, 2016) completed 22 housing units , and a further 130 units were due to be completed and in use by the end of June of this year. In any case I would have to agree with the submission of the respondent about this issue, that even if the respondent is in some way responsible for the emergency, that scarcely makes the resolution of the problem any less urgent.
53. The applicants also advanced another argument under this heading, to the effect that the respondent effectively contrived a situation where there would not be enough time to comply with Part VIII of the Regulations, thereby enabling it to drive the proposal through relying upon the emergency powers conferred upon it by s. 179(6)(b) of the Act of 2000, and avoiding the public consultation process prescribed therein. The applicants argue that the respondent could have completed the Part VIII process and developed the Premises (assuming for the purpose of this argument that the proposal was approved at the end of the Part VIII process) within the same time-frame as it did relying on its emergency powers. However, I think that this is highly unlikely. Realistically, I don’t believe it would have been appropriate for the respondent to commence a Part VIII process before taking a lease of the Premises, or without at least having entered into a written agreement for lease of the Premises with the archdiocese. There was no evidence that such an agreement was entered into, and the evidence established that a draft lease was only prepared in August, 2016 and was thereafter finalised and executed on 28th September, 2016. So the earliest the respondent could have commenced the Part VIII process was 28th September, 2016. I set out above section 179 of the Act of 2000 , and I think it is highly unlikely that there would have been sufficient time available to the respondent both to follow the procedures prescribed by s.179 of the Act of 2000 and Part VIII of the Regulations and thereafter carry out the necessary works to the Premises in order to have it available for use in December, 2016, which was the objective of the respondent.
54. For all of these reasons, I am of the opinion that, at the time of the making of the Order, and for that matter ever since, there was an emergency as regards the availability of accommodation for the homeless, and that the respondent had ample justification for its decision to invoke s. 179(6)(b) of the Act of 2000.
55. Having thus concluded, and before proceeding to address the question as to whether or not the development of the Premises is in material contravention of the Development Plan, I will first address the applicants’ claim that they were entitled to be consulted about the proposed development, as persons affected by the development of the Premises. It is claimed that the failure to consult with the applicants is a denial of their right to fair procedures and to participate in the decision-making process. The applicants rely upon the decision of the Supreme Court in Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1. I cannot accept this argument. There are very specific procedures for consultation and participation in the planning process set out in the Act of 2000. There is one set of procedures where planning applications are concerned, and another where local authority development is concerned, as provided for in Part VIII of the Regulations. No consultation procedure is prescribed for development undertaken by a local authority in cases of emergency pursuant to s. 179(6)(b) of the Act of 2000, and the reason for this is perfectly obvious; a requirement to consult in such circumstances could hamper a local authority in addressing an emergency. The protection that members of the public enjoy in such circumstances is contained in s. 178(2) of the Act of 2000, which prohibits the local authority from giving effect to any development that is in material contravention of the Development Plan. I might add that the circumstances of this case are entirely different to the circumstances that gave rise to the Supreme Court decision in Dellway.
56. Having thus concluded, it is now necessary to address the applicants’ arguments that the development of and change of use of the Premises are in material contravention of the Development Plan. The Development Plan acknowledges that an over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. Section 5.5.11, policy QH30 and s. 16.12 of the Development Plan are not inconsistent with the objectives set out elsewhere in the Development Plan to address homelessness. Rather they recognise that there is a need to make sure that such facilities are not overly concentrated in any one area, to the detriment of that area. Policy QH30 makes it clear that there is an obligation on those proposing to provide or extend temporary homeless accommodation to satisfy the respondent (as planning authority) that the proposal will not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. That is the planning objective to which the procedural elements of policy QH30 are directed. The second part of policy QH30 indicates the minimum documentation that must be provided with “all such applications” in order to assist the respondent as planning authority in deciding whether or not the proposal meets this objective. The words “proposals” and “applications” are used interchangeably in policy QH30.
57. Section 16.12 is very similar in its content to policy QH30. It sets out the policy objective of securing an appropriate balance in the further provision of new developments of institutionalised hostel accommodation, homeless support institutions and social support institutions and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum, and then goes on to impose an obligation on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity or the regeneration of an area. It requires applications to include documentation of the same kind that is specified in policy QH30, in order to assist the planning authority in arriving at a determination as to whether or not the proposed development is consistent with the planning objective set out in section 16.12.
58. It is not disputed that the effect of the making of an Order pursuant to s. 179(6)(b) of the Act of 2000 exempts the planning authority from the requirements of s. 179 of the Act of 2000, and Part VIII of the Regulations. Nor is it disputed however that the making of such an order does not entitle a planning authority to effect development that is in material contravention of its development plan, contrary to s. 178(2) of the Act of 2000. It is the applicants’ contention that the development of the Premises by the respondent is in material contravention of the Development Plan by reason of the failure of the respondent to support its proposal for the development of the Premises with information demonstrating that it will not result in an undue concentration of temporary homeless accommodation or support services relating thereto, nor undermine the existing local economy, resident community, or regeneration of an area. The applicants further contend that the development of the Premises for use as a facility for the homeless, coupled with the existing facilities for such purposes in the area, results in an undue concentration of the same contrary to policy QH30 and section 16.12 of the Development Plan. Moreover, the applicants submit that even prior to this development, there was already an undue concentration of such uses within 500m of the Premises, and that the development of additional facility for homeless accommodation at the Premises is such that the materiality of the contravention is beyond dispute.
59. For its part, the respondent denies that there is an undue concentration of homeless accommodation, or support services for the same, in the vicinity of the Premises either before or after the development of the Premises for such purposes. Furthermore, the respondent contends that the reliance by the applicants upon policy QH30 and s. 16.12 of the Development Plan is misplaced, because, in the submission of the respondent, those policies are clearly predicated upon there being either an application for planning permission or a proposal for and consideration of the development pursuant to Part VIII of the Regulations. Since neither arises in this case (by reason of the development being carried out pursuant to the Order declaring an emergency) there was no obligation on the respondent to prepare the documentation that would otherwise require to be prepared pursuant to the policy QH30 or s. 16.12 of the Development Plan.
60. I was referred by counsel to many authorities concerning the principles applicable to the interpretation of a development plan. In the case of Wicklow Heritage Trust Ltd v Wicklow County Council [1998] IEHC 19 McGuinness J., following a review of a number of authorities, identified the following principles as being applicable at p. 35:-
“(1) It is for the Court and not for the planning authority to decide as a matter of law whether a particular development is a material contravention of the local development plan.
(2) A development plan forms an environmental contract between the planning authority and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and further that the Council itself will not effect any development which contravenes the plan materially. In seeking to interpret the objectives set out in a Development Plan the court should ask what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.
(3) The requirements of the planning law must be applied with as much stringency against the local authority as they would against a private developer.
(4) It is necessary for a local authority to include all its objectives in its Plan. If it were otherwise it would mean that the local authority could totally override its own plan.”
61. So how would a reasonable person with no relevant planning expertise interpret policy QH30 and s. 16.12 of the Development Plan? The first part of policy QH30 refers to all “proposals” to provide or extend temporary homeless accommodation or support services for homeless persons. No reference at all is made to planning applications or to the Part VIII procedure of the Regulations. It requires that such proposals are supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, residential community or regeneration of an area. The second part of policy QH30 then prescribes the documentation to accompany all such “applications”. The words “proposals” and “applications” are used interchangeably, providing fertile ground for argument in these proceedings. Insofar as it has led to confusion, that confusion is, I think, most readily resolved by the reference to the word “all” before “proposals” in the opening part of policy QH30, and subsequently the use of the word “such” before applications, which is clearly intended to refer back to the proposals referred to earlier. The words are also used interchangeably in s. 16.12, but here again it states that “any proposal for homeless accommodation or support services will not result in an undue concentration of such uses…” In my view, a reasonable member of the public, if he or she were to dwell on the issue at all, would probably resolve the issue in his or her own mind by concluding that whatever the background to the proposal, and regardless as to whomever is making the proposal it will be subject to the kind of scrutiny envisaged both in policy QH30 and s. 16.12 of the Development Plan in order to ensure that it meets the objectives of the policies set out therein. Such a person would see the objectives of the policies as paramount, and would, in my view, be highly unlikely to embark upon a consideration of the genesis of the proposal under consideration, because the policy objective of avoiding an undue concentration of such uses must, as a matter of logic, apply to all proposals. It would make no sense if the policy could be avoided, through the use of emergency provisions, by the planning authority itself, with the possible result of an over concentration of such uses.
62. The respondent has also argued that the procedural requirements of policy QH30 and s. 16.12 were never intended to and clearly do not apply to emergency measures, and further argues that since the proposals make it clear that the use of the Premises is temporary only, there is no contravention of the Development Plan. If there were a temporal limitation on the use of the Premises, this argument might carry some weight. A proposal that is limited to a brief period of time is unlikely to have a long-term effect on the neighbourhood. But the respondent has been very careful to avoid such a limitation, and has expended a considerable sum of money on the Premises. No doubt it does not intend to use the Premises for homeless accommodation purposes for ever more, but it does intend to do so indefinitely. The fact that the lease of the Premises to the respondent is for five years only, and that it has waived its statutory entitlement to a new tenancy, does not prevent the respondent from agreeing to terms of a new lease with the archdiocese upon the expiration of the current lease. And in any case, if it is indeed the case that there is already or will be after this development an undue concentration of such uses in the area, the period of five years may be considered long enough to have the adverse consequences contemplated by the Development Plan. That is a planning judgment for the respondent to make, but it has not done so. It can hardly be doubted either that if a third party came to it with the same proposal, the respondent would require that party to commit to a date on which the use of the Premises would cease, if it was otherwise considered likely to give rise to an undue concentration of such uses in the area. It follows therefore that the fact that the period of intended use of the Premises remains open ended defeats any argument that the restrictions set out in policy QH30 and s. 16.12 of the Development Plan do not apply to emergency measures taken by the respondent, simply because the recommendation of Ms. Igoe states that the use of the Premises is to be temporary in nature.
63. It is clear from the recommendation of Ms. Igoe to the Chief Executive of the respondent that no documentation or information of the kind required by policy QH30 or s. 16.12 was prepared by the respondent. Furthermore, it is apparent that prior to the institution of these proceedings, no consideration was given by the respondent at all to the question as to whether or not the proposed development was in compliance with the Development Plan, whether in the context of policy QH30, s. 16.12 or otherwise. The respondent did not therefore consider and form any opinion as to whether the Premises was located in an area where there was already an undue concentration of such services, or, if not, whether the development of the Premises as proposed would give rise to such an undue concentration when taken together with existing facilities. It seems that the respondent addressed this issue for the first time for the purpose of resisting these proceedings. Up to that point, the entire focus of the respondent was to address the urgent need for the provision of accommodation for the homeless.
64. It follows from this that the failure on the part of the respondent to prepare the information and documentation required by policy QH30 and s. 16.12, even though it would only be preparing it for its own consideration, constituted a contravention of the Development Plan. The question that follows from this is whether or not this amounts to a breach of s. 178 (2) of the Act of 2000? It will be recalled that that section states: “The council of a city shall not effect any development in the city which contravenes materially the development plan.”
65. Referring to s. 178(2) of the Act of 2000, counsel for the respondent argued that in considering the section, it is the work itself or the change of use associated with the development that must be considered, and not the decision making process. He submitted that the meaning of the word “effect” in the section is directed to the carrying out of works, or a change of use, and that it is only the actual carrying out of works or a change of use that can give rise to a contravention of a Development Plan, and not the making of a decision to do the same. He referred to the Concise Oxford Dictionary of Current English (eighth ed.) which defines the word “effect” as meaning to “bring about or accomplish, or to “cause to exist or occur”. He submits that in making a decision pursuant to s. 179(6)(b) of the Act of 2000, a local authority is not obliged to have regard to the Development Plan in the decision making process, in the same way that it is expressly obliged to do so (pursuant to s. 34 of the Act of 2000) when considering a planning application. He refers to Simons, Planning and Development Law, 2nd Ed., para. 12-194 in which it is stated that:-
“In most cases in which a statutory discretion is conferred, some indication will be given in the legislation as to the matters which are to inform the exercise of that discretion. Perhaps the most comprehensive scheme is to be found in relation to the planning legislation itself. There, in deciding to grant or refuse planning permission, a planning authority or An Bord Pleanála shall consider the proper planning and sustainable development of the area. In addition, regard is to be had to a number of matters including, for example, the Development Plan”.
It is submitted that since there is no such obligation in the legislation as regards the exercise of powers pursuant to s. 179(6)(b) of the Act of 2000, there is no obligation on the respondent to have regard to the Development Plan when invoking that sub-section. But yet it is accepted by the respondent that the invocation of s. 179(6)(b) of the Act of 2000 does not entitle a local authority to carry out development in breach of s. 178(2) of the Act of 2000.
66. In reply to this argument, counsel for the applicants submitted that the respondent was attempting to separate the decision to undertake works and/or change the use of the Premises from giving effect to that decision. He submitted that the problem with this line of argument is that it would leave the applicants with no remedy; the decision itself could not be challenged for the reasons advanced by the respondent, and the carrying out of works would be exempt from enforcement proceedings – such as an application for injunctive relief under s. 160 of the Act of 2000 – because the carrying out of the works by the respondent would be exempt from planning permission and also from the Part VIII process provided for by the Regulations by reason of the use of s. 179(6)(b). Moreover, he submitted that all of the cases relied upon by the applicants in their submissions were challenges to decisions, which decisions were quashed by the courts because the implementation of those decisions would have constituted a material contravention of the Development Plan. In this case, the decision itself was taken in contravention of the Development Plan and it is submitted that that contravention was a material convention of the Development Plan because policy QH30 and s. 16.12 are very prescriptive and contain specific, mandatory measures to be complied with before any proposal for such development may be considered and approved. The applicants rely upon the decision of Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678 wherein he stated at para. 53:-
“The way in which Development Plans are set out vary. Certain aspects of the plan may have a high level of specificity. For example the zoning attached to certain lands may preclude development of a particular type in express terms. Where development of a particular type is permitted, specific parameters, such as plot ratios, building heights or the like may be specified. In those cases it may not be at all difficult to determine whether what is proposed is in contravention of the plan. In those circumstances it would only remain to exercise a judgment as to the materiality of any such contravention.”
67. As to materiality, it is submitted that the test is that articulated by Barron J. in the case of Roughan v. Clare County Council, (Unreported, High Court, Barron J., 18th December 1996), which test was approved and applied by Clarke J. in Maye. In Maye, Clarke J. stated:-
50. 6.1 So far as materiality is concerned I adopt the test set out by Barron J. in Roughan v. Clare County Council (Unreported, High Court, Barron J., 18th December, 1996) where he stated as follows at pp. 5 to 6 of the unreported judgment:-
“What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there are no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention.”
68. It is submitted on behalf of the applicants that these proceedings have been brought on behalf of a large number of persons living in the local community and that, based on the evidence before the court, it is abundantly clear that local interests might reasonably have been expected to oppose the proposed development. It is further submitted that this is borne out by the letter of the Chief Executive of 14th November, 2016 to the third named applicant wherein he acknowledges that the failure to consult with the local community in relation to the proposed development is a matter of considerable annoyance and indeed anger to some members of the community, which the Chief Executive says is both understandable and unfortunate. For its part, in response to this the respondent argues that the letter of the Chief Executive is no more than an acknowledgement of a shortcoming of courtesy, and falls far short of demonstrating the kind of opposition required to be taken into account when considering materiality.
69. Having considered these arguments, I have come to the conclusion that the failure to apply policy QH30 and s. 16.12 of the Development Plan in considering the proposal to develop and change the use of the Premises is a material contravention of the Development Plan. I have come to this conclusion for several reasons. Firstly, as the applicants argue, it is clear that there is a high degree of specificity prescribed in the Development Plan in relation to the procedures for approval of such developments. It is clear that no effort at all was made to comply with these procedures, and that the entire focus of the respondent, perhaps understandably, was upon addressing the emergency it faced.
70. Secondly, there cannot be any doubt that the purpose lying behind this high degree of specificity was to ensure that the respondent would have available to it sufficient information to decide whether or not the proposed development would give rise to an undue concentration of such facilities in the area, to the detriment of the area. The possibility of such detriment is expressly acknowledged by the Development Plan. The argument that the respondent has no obligation to have regard to the provisions of the Development Plan in making a decision for the purpose of s. 179(6)(b) of the Act of 2000 cannot possibly be correct in light of the very express requirements of policy QH30 and s. 16.12 of the Development Plan and the underlying purpose of that policy and section, and also having regard to the obligation in s. 178(2) of the Act of 2000 not to effect development in material contravention of the Development Plan.
71. Moreover, as a general proposition, Simons opines at para 12-94 that:-
“Before embarking on development, a local authority should therefore address its mind to the question as to whether or not the particular development represents a material contravention of the Development Plan. Presumably no responsible local authority would proceed with the development unless it was satisfied that there was no material contravention involved, and thus it would seem that a decision to proceed with a particular development should, by definition, indicate that the local authority was of the view that there was no material contravention.”
72. The procedural elements of policy QH30 and s. 16.12 do no more than prescribe how the respondent should comply with this obligation. Even if these requirements were not set out in the Development Plan, there would in my view be an obligation on the respondent to consider whether or not the proposed development contravenes the Development Plan, in view of s.178(2) of the Act of 2000. The question as to whether nor not the change of use of the Premises might contribute to or give rise to an undue concentration of such facilities in the area, with the attendant detrimental consequences surmised by the Development Plan, is clearly an important one, and one that is likely to be of significant interest and concern to the residents in the area. As a matter of fact, the development of the Premises has attracted local opposition, which the Chief Executive of the respondent has described as understandable. In any case in my view, the people of the locality have real and substantial grounds for such concerns.
73. It follows from the above that the Order must be quashed, not because the development and change of use of the Premises is in material contravention of the Development Plan (about which I make no finding), but because in failing to comply with the specific procedures for such developments set out in policy QH30 and s. 16.12 of the Development Plan, and in particular in failing to consider and make any decision upon the question as to whether or not the development and change of use of the Premises will contribute to or give rise to an undue concentration of such facilities in the area, or have the detrimental consequences described in policy QH30 and s. 16.12, the respondent, in making the Order, has effected development in material contravention of the development plan.
74. Finally, I should add that it was strongly urged on behalf of the respondent that the decision as to whether or not the development and change of use of the Premises gives rise to an undue concentration of such facilities in the area, such as to have the adverse consequences referred to in policy QH30 and s. 16.12 is a decision that requires planning expertise and as such is a matter for the respondent as planning authority, and not the court, and further that any such decision is only amenable to judicial review in accordance with the well-established principles laid down by the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Counsel for the respondent posed the following rhetorical question – even if the applicants are correct about the number of facilities and support services for homeless in the Carman’s Hall area, how is the court to arrive at any conclusion as to whether or not these constitute an undue concentration in the area? I think that counsel is correct that the question as to what constitutes an undue concentration of such facilities, and the effect that they might have in any given area is a matter requiring planning expertise and calls for planning judgement. The difficulty in this case is that it is clear that the Order was made without any regard to these matters at all. Not only was there no material before the Chief Executive upon which to base a decision that the development of the Premises would not give rise to an undue concentration of such facilities, no decision to this effect was taken at all by the respondent. The change of use of the Premises may or may not constitute a material contravention of the Development Plan, but since there has not been compliance with either policy QH30 or s. 16.12 of the Development Plan, and since the respondent has not otherwise given any consideration to this question, there is no decision to review in this regard. (whether in accordance with the O’Keeffe principles or otherwise).
75. I am very mindful of the potential consequences of this decision, not just for the respondent but for those most vulnerable people who are benefiting from the Premises. I am also mindful of the commitment given by the Chief Executive of the respondent, in his letter to the third named applicant of 14th November, 2016, to consult with the local community before deciding to extend the use of the Premises beyond the 2017/2018 winter period. Accordingly, I will hear counsel in relation to the orders that must flow from this conclusion.
76. Finally, I mentioned earlier that the respondent has raised an issue as to the capacity of the first and second named applicants, specifically it is claimed that as unincorporated associations, they do not have the capacity or legal personality to bring these proceedings. If I had made a decision adverse to the applicants, then it would be necessary for me to address these arguments in order to be able to address the issue of costs. However, since I have found in favour of the applicants, and since the third named applicant is an individual whose entitlement to bring forward the proceedings is in no way challenged (or in doubt), it is unnecessary for me to address the question as to whether or not the first and second named applicants had capacity to bring the proceedings.
Dublin Corporation v Garland
The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin v Patrick Garland, George Reilly, John McDonald and Noel Flaherty
1981 No. 27 MCA
High Court
27 November 1981
[1982] I.L.R.M. 104
This is an application under s. 27 of the Local Government (Planning and Development) Act, 1976 for an order restraining the respondents from continuing the user of premises at 59 Upper Drumcondra Road in the City of Dublin or any part thereof as offices and from using the premises or any part thereof otherwise than as a residential premises. It was heard by me on affidavit on 9 November 1981 and I then reserved judgment. The facts out of which the application arises were not in dispute on the affidavits before me and may thus be summarised.
The respondents, who are Chartered Accountants practising in partnership, purchased this house in 1973 from a doctor who had previously lived in it and had a surgery on the premises. In November 1973 they commenced to use the *105 premises substantially for office purposes retaining only a small part as a residential flat. The house was apparently inspected on behalf of the Planning Authority in January 1974 when this change of user was discovered and proceedings were then issued pursuant to the provisions of s. 24 of the Local Government (Planning and Development) Act, 1963 alleging an offence by unauthorised change of user. On the receipt of that summons, the solicitors on behalf of the respondents made a reference to the Planning, Appeals and Reference section of the Department of Local Government asking for a decision as to whether a change of user had taken place or whether the change was exempted. That application was determined and the then Minister for Local Government on 2 April 1976 decided that the change was a development within the meaning of the Act. The respondents in October 1976 applied for planning permission for change of user and, after a request for additional information, a decision to refuse that permission was made by the applicants before me in January 1977. In the meantime, the hearing of the proceedings under s. 24 of the 1963 Act which had been adjourned pending the reference and the decision thereon were finally disposed of in December 1976 and three of the four respondents, who were then the persons in occupation, were convicted and fined 1 each. A further application for change of user but based on different plans was lodged with the applicants by the respondents in April 1977, that application was affected by the Housing Act, 1969 and proceedings under that Act had first to be dealt with. Permission under the Housing Act was granted in July 1978 and the planning permission sought was refused in August 1978. That refusal was appealed by the respondents and the appeal was dismissed by An Bord Pleanala in February 1979. In the meantime, an Enforcement Notice, pursuant to the provisions of s. 31 of the Act of 1963, was issued in January 1978 and proceedings under sub-s. 8 of this section were subsequently issued for non-compliance but they were dismissed in November 1979 on technical grounds. Fresh proceedings under the same section were issued in March of 1980 and they were heard in May of 1980 and were apparently dismissed by the District Justice on the grounds that he was not satisfied with the evidence seeking to prove a change of user within five years from the Enforcement Notice. This application under s. 27 was then issued in April of 1981 and after a number of adjournments came on for hearing before me.
In the affidavits filed on behalf of the respondents this history of the matter is not contested but there are a substantial number of averments dealing with the difficulties which the respondents had been encountering in obtaining alternative accommodation for their office, the hardship which would be imposed on them in their professional practice had they to move from these premises and a series of averments exhibiting letters from some of the neighbours indicating that some of the grounds for refusal of their applications for planning permission are not valid grounds in the sense that they are not causing a nuisance and that the parking of motor cars in connection with the business does not present a problem.
It was contended by counsel on behalf of the respondents firstly that the applicants, the Corporation of Dublin, having caused the premises to be rated *106 as used for office purposes during the years from 1976 up to the present were estopped from bringing this application under s. 27 of the 1976 Act. Secondly, that even if that were not so, that I should exercise my discretion by refusing to make an order under s. 27 on the grounds that the evidence before me would indicate that there was no reality in the objections put forward by the Planning Authority leading to the refusal of permission to change the use of the premises and thirdly, that I should exercise my discretion on the basis of the unique hardship which would be applied to these respondents and in the latter context reliance was placed on my own decision in Dublin Corporation v Mulligan.
Having regard to the issues raised in this application it seems to me necessary again to clarify and identify the issues which appear to me to be before the court in the bringing of an application under s. 27 of the 1976 Act. There can, in my view, be no function in the court on the making of an application under this section in any way to review, alter or set aside a decision of the Planning Authority with regard to the granting or withholding of permission. The entire scheme of the Planning Acts is that, subject to the limited exceptions for the determination by the High Court of questions of law specifically referred to it, decisions as to the proper planning and development of any area are peculiarly the function of the Planning Authority in the first instance and of An Bord Pleanala on appeal from them. The matters material to an application under s. 27, and the manner in which it is to be brought by simple Notice of Motion based in the first instance and frequently disposed of on affidavit rather than on oral evidence, is plainly and patently quite inappropriate to the determination of matters of planning decision. The court cannot therefore entertain, in my view, in regard to applications under s. 27 any question challenging the validity or correctness of a decision of the Planning Authority in regard to the granting or refusing of permission, though it may be concerned within the broader limits of its discretion with the consequences of unauthorised use or illegal development.
With regard to the point of estoppel taken on behalf of the respondents, I am satisfied it must fail. The basic principle of the doctrine of estoppel is that conduct on the part of one party which has been acted upon by the other to his or her detriment and which is inconsistent with the claim subsequently made, may defeat that claim. There appears to me, in the first place, to be absolutely no inconsistency between the exercise by the rating authority of its proper power to levy upon the users and occupiers of premises a rate appropriate and applicable to their de facto use and benefit from them, and a contention contemporaneously or subsequently made that that user is a breach of the Planning Acts and should by appropriate proceedings be discontinued. The plea of estoppel must therefore fail at the first primary enquiry quite apart from the question as to whether it can properly be said that the Planning Authority and the Rating Authority are the one party.
On the broader issues of discretion, I have come to the conclusion that I must exercise it in favour of the applicants. This is not a case in which there has been any conceivable question of laches or delay on the part of the applicants nor of any inactivity on their part. From a very short time after the commencement of this unauthorised use the applicants pursued every remedy available *107 to them to try and achieve its termination. The delays in the bringing of the various proceedings by the Planning Authority were in my view no more than a reasonable approach to permitting the respondents, as a matter of concession, to exercise their rights for the determination of all legal questions concerned with the change of user, and to obtain properly arrived at decisions with regard to the planning status and user of these premises. More importantly still, bearing in mind the reasons for my decision in Dublin Corporation v Mulligan, the respondents have not at any time since very shortly aftder they purchased these premises been under any conceivable misapprehension as to the fact that their continued user of them as office premises was dependent on the result of a number of different applications which they were making to the Planning Authority and to the Minister for Local Government. They were never lulled into a belief, as was the respondent in Mulligan, that his user of the premises for office purposes had become tolerated or accepted. There cannot be in my view therefore any question of a vested interest created in them which would justify the withholding by this court of the applicants prima facie right to an injunction under s. 27. I appreciate that in Mulligan I distinguished between the refusal, with regard to part of the premises which I there decided upon, of an injunction under s. 27, and the authorisation for all time of an unauthorised user of the premises. In this case, however, it seems to me that, notwithstanding the fact that I have very considerable sympathy for the respondents in the problem which now faces them and in the difficulty in which on the evidence I am satisfied they have encountered and are encountering in obtaining alternative accommodation, if I were to refuse to grant an injunction under s. 27 that I would be refusing to lend the aid of the court, which was intended by the legislature by the enactment of s. 27, to the implementation of decisions of the planning Authority. In a case as this, where there is no other possible planning application which the respondents can make which could result in the granting of a permission to them to use the premises as offices, it seems to me, that to refuse an injunction would be in effect to reverse the decision of the Planning Authority.
I am therefore satisfied that an injunction must be made but I am also satisfied that, on the merits of the case, the respondents should obtain a very substantial stay on the implementation of that injunction so as to permit them to obtain alternative accommodation for their office purposes. On the evidence before me, the form of the injunction will be an injunction restraining the respondents, and each of them, from continuing the user of the premises known as 59 Upper Drumcondra Road in the City of Dublin or any part thereof as offices and further restraining them from using the said premises, or any part thereof, otherwise than as part residence and part surgery for a medical practitioner or entirely as residential premises.
Both orders to be stayed for a period of 12 months from this date.
Representation
Cork Corporation v Christopher OConnell
1981 No. 273
Supreme Court
4 May 1982
[1982] I.L.R.M. 505
(Henchy J, Griffin and Hederman JJ)
GRIFFIN J
(Hederman J concurring) delivered his judgment on 4 May 1982 saying: No. 20 Academy Street, Cork was for a considerable time prior to the month of December 1980 used as a hardware retail shop. The shop closed down. During the month of December 1980 it became apparent to the planning officials of the applicants (the Corporation), who are the planning authority, that the above-named Christopher OConnell (the defendant) intended to re-open the premises and to conduct therein the business of an amusement arcade. Planning permission for such change of use had not been either sought or granted. The defendant already carried on the business of a pool hall and amusement centre in the adjoining premises No. 21 Academy Street. The suspicions of the officials of the Corporation were not unfounded. On 12 December 1980, the defendant became the lessee of No. 20 for the term of 21 years at the yearly rent of 12,000, so it is clear that he was in the process of acquiring these premises for sometime prior to that date. On 5 December 1980 the Corporation wrote to the defendant informing him that it had come to their notice that he was carrying out unauthorised work on the premises, and that this work should cease forthwith. The work on the premises nevertheless continued, and on 12 December 1980 the Corporation caused a warning notice pursuant to s. 26 of the above Act to be served on the defendant informing him that it appeared to the Corporation that an unauthorised use of the premises was being or was likely to be made in contravention of s. 24 of the Local Government (Planning and Development) Act, 1963, and requiring him to take adequate steps to comply with the notice. This notice was not complied with. It appears that on the advice of Mr J. V. Lennon, the defendants engineer, that the proposed change of use of the premises would be an authorised change of use, would not be a material change of use, and would be an exempted development within the meaning of the Planning Acts, the defendant opened the premises for business on 19 December 1980. The business consisted of operating some 35 gaming or slot machines mostly of the video type.
S. 24 of the Act of 1963 (insofar as it is relevant to this case) provides that planning permission is required in respect of any development of land, which is not exempted development, and prohibits the carrying out of any development save under and in accordance with such a permission. Development is defined in s. 3 of that Act as meaning the carrying out of any works on, in or under any *507 land, or the making of any material change in the use of any structure or other land. S. 4(1) provides what are exempted developments, and includes at (g) development consisting of the carrying out of works for the maintenance, improvement or alteration of the structure being works which affect only the interior of the structure. S. 4(2) gives to the Minister for the Environment power to make regulations providing for any class of development being exempted development. By SI 65 of 1977 the Minister duly made regulations in that behalf.
By s. 26(4) any person who knowingly fails to comply with the requirements of a warning notice shall be guilty of an offence. On 22 December 1980 proceedings were commenced against the defendant in the District Court for his failure to comply with this notice. Those proceedings are not strictly relevant to this appeal, and I refer to them merely to give a complete picture of the matter to date, and also because the defendant relied on their existence as a reason for seeking an adjournment of these present proceedings in the High Court. According to Mr Lennons affidavit as a result of prohibition proceedings brought in the High Court, these summonses were, at the time of the hearing in the High Court, still pending having been adjourned from time to time. This Court has no information as to the grounds for making an order of prohibition, or as to the present position of such proceedings.
Under s. 5 of the Act of 1963 if any question arises as to what, in any particular case, is or is not exempted development, the question shall be referred to and decided by the Minister for the Environment (now decided by An Bord Pleanala (the Board) by virtue of s. 14(2) of the Act of 1976). By s. 5(2) an appeal to the High Court from a decision of the Board may be taken within 3 months after the giving of the decision.
Mr Lennon, on behalf of the defendant, referred to the Board the question of whether or not the change of use was an exempted development. On 6 May 1981, the Board decided that it was not. On 19 June 1981 the defendant lodged with the Corporation an application for planning permission in respect of the change of user which had in fact taken place.
By notice of motion dated 6 July 1981 the Corporation gave to the defendant notice of their intention to apply to the High Court on 20 July pursuant to s. 27 of the 1976 Act for an order prohibiting the continuance of the unauthorised use of the premises. These proceedings were grounded on the affidavits of two of the Corporations officials. When the matter came into the list on that day, the defendant applied for and obtained an adjournment to enable him to deliver an answering affidavit. It was later adjourned further, and was ultimately listed for hearing before Costello J on 19 October 1981. In the meantime, a plenary summons was issued on behalf of the defendant on 27 July 1981, instituting proceedings against the Corporation by way of appeal from the decision of the Board, pursuant to s. 5(2) of the 1963 Act. This plenary summons was not served on the Corporation. As now appears, the application for an adjournment made on 20 July was not genuine the answering affidavit of Mr Lennon had in fact been sworn on 19 July, and although sworn at that time was not in fact delivered or filed until the hearing of the application on 19 October.
On 19 October events took what can only be described as an extraordinary *508 turn. On that morning, although Costello J had agreed to hear the planning matter that day, and the matter was listed for hearing before him, counsel for the defendant applied to Barrington J for, and obtained, a conditional order of mandamus directed to the Corporation requiring them, in accordance with the provisions of s. 26(4)(a) of the 1963 Act, to grant planning permission to the defendant to retain the extension of his amusement shop at 21 Academy Street to the ground floor of No. 20. This application was grounded on an affidavit of Mr Lennon. Such an application, being ex parte on the State side, required the utmost good faith and full disclosure of all material facts on the part of the defendant, more particularly on the part of his solicitor and counsel. Barrington J was not informed that proceedings in respect of the same premises were due to be heard that morning before Costello J, nor was he even informed of the existence of those proceedings. Had he been so informed, it is reasonably certain that he would not have made the orders sought, but would have directed the defendants counsel to make the application to Costello J.
Armed with this order of mandamus, and with what I could only describe as an unusual degree of courage, the defendants counsel then appeared before Costello J, informed him of the making of the order by Barrington J some minutes before, and submitted (inter alia) that an injunction should not be granted in pursuance of s. 27 at a time when a conditional order of mandamus compelling the Corporation to grant planning permission had already been made by another judge of the High Court. An adjournment of the proceedings under s. 27 was sought on that ground. This somewhat audacious application was, not unexpectedly, refused by Costello J. He heard the application, granted the order sought, and in doing so said (inter alia) that the case was clear, that the defendant had been blatantly in breach of the Planning Acts, that the procedures of the courts had been used to try to make money, and that, in the exercise of his discretion, he would direct that the defendant his servants and agents be prohibited as from 20 October 1981 from continuing the unauthorised use of the premises at No. 20 Academy Street.
The defendant has appealed to this Court. His first ground of appeal is that Costello J was wrong in law in granting the injunction under s. 27 at a time when the conditional order of mandamus had already been granted. This ground was not relied on, but I should nevertheless like to say that, in my opinion, Costello J was fully justified in refusing the application for an adjournment and in proceeding with the application. Having regard to the circumstances and manner in which the conditional order of mandamus was obtained, there being on the part of the defendant not merely an omission to disclose but concealment of material facts, cause shown would in my view have been allowed for the asking, and an absolute order would not have been made. Every litigant has a right to resort to the courts to vindicate his rights, and the courts are there for the use of litigants for that purpose. The procedures of the courts cannot however be used in such a way as to amount to an abuse of the courts process, and that is regrettably what in my opinion was done by the defendant and his advisers.
The principal submissions made on behalf of the defendant on the hearing of this appeal, as in the High Court, were (1) that the change of use did not con *509 stitute a material change of use, (2) that the change of use was an exempted development and therefore was not an unauthorised use, and (3) that once the plenary summons was issued pursuant to s. 5 of the Act of 1963 the jurisdiction of the court to make an order pursuant to s. 27 was ousted. There was a further submission that Costello J erred in deciding the matter on affidavit without giving to the defendant an opportunity of calling oral evidence. This Court did not consider it necessary to call on counsel for the Corporation to reply to any of these submissions.
The making of any material change in the use of any structure is included in the definition of development in s. 3 of the 1963 Act. In this case, the change of use was from that of a retail hardware shop to one of an amusement arcade a premises in which there are 35 slot machines available for play by members of the public, these machines being coin operated. Costello J had no doubt that this was a change of considerable materiality, and I am in complete agreement with him. This business will attract to these premises and to its precincts large crowds, mostly consisting of younger people, not only those who come to play but also those who come to watch. The numbers the defendant is confident of attracting to the premises may be gauged from the 12,000 per annum which he is prepared to pay for rent alone.
The learned trial judge held that the development was not an exempted development, and with this finding I would also agree. It is alleged that the works carried out affect only the interior of the structure, and therefore come within s. 4(1)(g). This might be so in respect of the actual physical works carried out, but the subsection only applies to works and does not extend to a material change of use. In the alternative however, the defendant submits that the development is exempted development under the regulations made by the Minister (SI No. 65 of 1977). He says that his premises is still a shop, and that change of user from one shop to another is exempted development. While certain change of use to that of a shop is exempted development under Arts. 10 and 12, these articles do not apply to this premises. In addition, in the regulations shop is defined (Art. 9) as a structure used for the carrying on of any retail trade or business in which the primary purpose is the selling of goods by retail, and the definition expressly excludes a structure used as a funfair. Funfair is itself defined as including an amusement arcade. But even if an amusement arcade was not expressly excluded, there is in my view no way in which a premises containing 35 slot machines could be considered to be a shop.
With regard to the alleged ouster of jurisdiction of the High Court to make an order under s. 27, the issue of a plenary summons pursuant to s. 5 of the 1963 Act does not, in my opinion, operate to oust the jurisdiction of the High Court. In its long title, the object of the 1976 Act is stated to be to make better provision in the interests of the common good for the proper planning and development of cities, towns etc. The 1963 Act had been found to have serious procedural deficiencies where unauthorised development or use was made of premises. By s. 27 the Legislature introduced what is a very important section into the 1976 Act, and gave a new and wide jurisdiction to the High Court to be exercised at the instance of the planning authority or any member of the public to prohibit *510 the continuance of any unauthorised development or use of land. Because of the likely urgency of any such matter, an application to the High Court for an order under the section is made by motion, without the necessity of instituting proceedings in the normal way. This section provided the planning Acts with much needed teeth that had theretofore been lacking. It would indeed be curious if, by merely alleging that development was exempted development, however unmeritorious that allegation might be, the teeth provided by that important section could be entirely removed. This is all the more so when, as in this case, the Board has already decided that the work or use is not exempted development and where the developer has applied for planning permission subsequent to to the decision of the Board. What the defendant in substance says is that, although there is already a decision of the Board which stands unless and until it is reversed on appeal, he may nevertheless by merely issuing a plenary summons in pursuance of s. 5, carry on business in the premises as if the appeal had already been determined in his favour by the High Court, and that he may not be prevented from doing so by an order made under s. 27, even though such proceedings might take a considerable time until they are finally determined. If this were so, the clear intention of the Legislature in enacting s. 27 would be wholly defeated. In my opinion, the jurisdiction of the High Court pursuant to s. 27 is not ousted by the institution of proceedings under s. 5.
Undoubtedly, as Costello J stated, in an appropriate case the court could exercise its discretion and adjourn the s.27 application, but he did not consider that this was such a case, and neither would I.
With regard to the submission that Costello J should have taken oral evidence, he decided in his discretion that he had all the necessary material before him to enable him to determine the questions in issue. I agree that he had, and that there is no substance in this submission.
I would accordingly dismiss this appeal.
HENCHY J
(Hederman J concurring) delivered his judgment on 4 May 1982 saying: In my opinion the judgment of Costello J should be affirmed in every respect.
Up to December 1980 the defendant was running a hardware shop at 20 Academy St., Cork. Then, without getting planning permission he turned it into an amusement arcade with 35 slot machines.
Clearly, as the judge found, it then ceased to be a shop and became an amusement arcade. Planning permission was required but was not got for this substantial change of use. The case, therefore, fell fairly and squarely within the ambit of s. 27 of the 1976 Act and it was a proper exercise of the judges discretion to grant an injunction to Cork Corporation under that section.
The defendant sought to employ two devices to stave off that consequence of his disregard of the requirements of the Planning Acts. He applied, unsuccessfully, to the Planning Board (under s. 5 of the 1963 Act as amended) for a ruling that the change was exempted development, and there is an appeal to the High Court pending under s. 5 against that ruling. Counsel for the defendant argued that while that appeal was pending an injunction should not be granted under *511 s. 27. The judge refused to accede to that argument. I would respectfully agree. S. 27 of the 1976 Act amounts to a summary and self-contained procedure which should not be allowed to be frustrated or protracted by the utilization of the collateral procedures allowed by s. 5 of the 1963 Act.
The second device employed on behalf of the defendant for the purpose of fending off an order under s. 27 was no less effective. But it is somewhat disturbing. On the very day that Costello J was dealing with the s. 27 application, a conditional order of mandamus was obtained from another High Court judge directing Cork Corporation to give planning permission by default under s. 26(4)(a) of the 1963 Act. We have not seen the affidavit or affidavits on foot of which that conditional order of mandamus was made, but if they showed, as they should have done, uberrima fides , they would have disclosed that Costello J was dealing on that very day with a s. 27 application in which it was being contended that planning permission was not necessary. It is difficult to believe that, if such disclosure had been made, the other High Court judge would not have refrained from making the conditional order of mandamus and would not have allowed all aspects of the case to be dealt with by Costello J. It is no less surprising that the affidavit filed in the proceedings before Costello J did not disclose that it was part of the defendants case that he was entitled by default to planning permission. Instead of which, it was maintanied on the same day before one judge that planning permission was not necessary and before another judge that planning permission had been obtained. Such duplicitous use of the processes of the courts is, to say the least, undesirable.
Costello J did not allow himself to be deflected by the collateral and questionable procedures employed from making the order required in the circumstances.
I would dismiss this appeal.
The State (Magauran) v Dublin Corporation
1979 No 177
Supreme Court
22 July 1982
[1983] I.L.R.M. 145
(Nem. Diss.) (Henchy, J, Griffin and Hederman JJ)
HENCHY J
delivered his judgment on 22 July 1982 saying: This is an appeal by Dublin Corporation (‘the Corporation’) against an absolute order of mandamus granted to John Magauran (‘the prosecutor’) directing the Corporation as the relevant planning authority to grant him planning permission in respect of each of eight planning applications. Each of the eight applications was for permission for change of use of a particular part of the premises at 24 Lower Leeson St., Dublin. It is agreed that for the purpose of this appeal no distinction in law is to be made between the eight applications. In the High Court, and in this Court, the points in issue were argued by reference to the part of the premises lettered ‘W’ in the planning applications. The judge in the High Court held that planning permission in respect of ‘W’ had accrued by default to the prosecutor, under s. 26(4) of the Local Government (Planning and Development) Act, 1963. If that conclusion is correct, this appeal fails. Otherwise, it succeeds.
The relevant part of the application made by the prosecutor for permission under the Planning Acts in respect of ‘W’ reads as follows:
Change of use of one room in the first floor [of the] house to office use. The house is principally used as a dwelling and the change of use will not cause to reside elsewhere a person who immediately before the change of use was ordinarily resident in such house.
The ‘present use of each floor or use when last used’ was given as ‘mainly residential — except cellar’. The proposed use of each floor was said to be ‘principally residential’, and there was added in the form this submission: ‘This application it is submitted does not require Housing Act permission’.
This latter submission referred to the Housing Act, 1969. The long title of that Act is: ‘An Act to make provision to control the demolition or use otherwise than for human habitation of certain houses, to amend s. 66 of the Housing Act, 1966, and to make provision for other matters connected with the matter aforesaid’.
S. 1(1) of the 1969 Act defines a ‘house’ as ‘a building or part of a building which is (a) used as a dwelling, or (b) not used as a dwelling but which, when last used, was used as a dwelling’. It is agreed that the room to which the ‘W’ application referred was a ‘house’ for the purposes of the 1969 Act. S. 2(1) and *147 (2) of the 1969 Act provides as follows:
(1) Subject to s. 9, permission shall be required under this Act in respect of—
(a) …
(b) the use otherwise than for human habitation, of any habitable house.
(2) A person shall not … cause or permit any change of use of a house in respect of which permission is required under subsection (1) save under and in accordance with a permission granted under this Act.
Prima facie, therefore, the change of use applied for in the ‘W’ application required, not only permission under the 1963 Act, but also permission under the 1969 Act. This is because s. 10(a) of the 1969 Act says that an application under the 1963 Act shall not be decided until an application under s. 3 of the 1969 Act has been determined; and s. 2(2) of the 1969 Act forbids a change of use save under and in accordance with a permission granted under that Act, where such permission is necessary. However, permission under the 1969 Act would not be necessary if the prosecutor could avail himself of the saving terms of s. 9(2) of the 1969 Act. That subsection reads as follows:
A permission under this Act shall not be required in relation to the use otherwise than for human habitation of part of any habitable house for, but only for, so long as the house is principally used as a dwelling and the change of use does not cause to reside elsewhere a person who, immediately before the change of use, was ordinarily resident in such house.
A ‘habitable house’ is defined in s. 1(1) as:
a house situate in the functional area of a housing authority other than a house in relation to which a housing authority have made a closing order, a demolition order or accepted an undertaking under s. 66(5) of the [Housing] Act of 1966, or in relation to which a notice under s. 3(1) of the Local Government (Sanitary Services) Act, 1964, has been given.
There is no suggestion that the premises at 24 Lower Leeson St. was not a habitable house for the purposes of the 1969 Act.
In the circumstances of this case, therefore, it was for the prosecutor as the person seeking the benefit of the exemption contained in s. 9(2) of the 1969 Act to satisfy the Corporation (a) that the change in use of the room in question to office use was for, but only for, so long as the ‘house’ is principally used as a dwelling, and (b) that the change of use does not cause to reside elsewhere a person who, immediately before the change of use, was ordinarily resident in such ‘house’.
The method he chose to establish those matters was to make certain assertions in the planning application form and to make a submission that permission under the 1969 Act was not necessary. He now claims that nothing further had to be done by him in order to avoid having to get permission under the 1969 Act for change of use.
I cannot agree. If that were correct, an applicant for planning permission under the 1963 Act could include in his application assertions for the purposes of the 1969 Act and, if those assertions had to be accepted without question by the housing authority, the applicant would be constituting himself the sole and *148 final arbiter of the question whether he was exempt from having to get permission under the 1969 Act for the proposed change of use.
Despite the fact that the Corporation is both the planning authority and the housing authority, it is clear from the scheme of the Housing Acts, 1966 and 1969, that it is qua housing authority that it must act when determining whether there is exemption from the general obligation under s. 2 of the 1969 Act to obtain permission for the use otherwise than for human habitation of a habitable house. It is for the applicant to prove the existence of that exemption, and the adjudication has to be made in the first instance by the housing authority. To enable it to make the adjudication, it is entitled to be given certain particulars in a prescribed manner: see s. 3 of the 1969 Act.
In this case the Corporation, on receipt of the planning application, wrote to the prosecutor stating that the proposed development involved a change of user which required a separate permission under the 1969 Act. This may or may not have been correct. The prosecutor contended that no such permission was required under the 1969 Act, because of the exemption contained in s.9(2). But the onus was on him to show that he was entitled to that exemption. To do that, he had to furnish the Corporation with such particulars as would enable them to make the necessary adjudication. Hence the letter from the Corporation requiring an application to be made under the 1969 Act and requiring certain particulars to be furnished.
The prosecutor chose to ingore that letter. His contention was, and is, that no permission has to be sought under the 1969 Act where there is no displacement of a resident and where the house remains mainly residential after the change of use. But that is to beg the question; for those are matters that require to be proved by him, not merely asserted. He should have given the Corporation the requested particulars. Until he did so, the Corporation could not make a ruling as to whether he had discharged the onus of showing that he was entitled to the exemption in s. 9(2).
The 1969 Act grafts on to the 1963 Act further prerequisites for the grant of development permission in certain cases. Until those prerequisites are satisfied, or ruled inapplicable, a development permission cannot be validly granted, either expressly or by default under s. 26(4) of the 1963 Act.
For the foregoing reasons, I consider that the prosecutor was wrong in law in arrogating to himself the right to decide that he was entitled under s.9(2) of the 1969 Act to exemption from having to get permission under that Act. He is therefore wrong in law in contending that the Corporation should have ignored the 1969 Act. That being so, there is no ground for his claim that the Corporation should be regarded under s. 26(4) of the 1963 Act as having granted by default the planning permission applied for.
I would allow the Corporation’s appeal against the grant of an absolute order of mandamus and I would discharge the conditional order.
McMahon v Dublin Corporation
Thomas McMahon and Others v Right Honourable The Lord Mayor, Aldermen and Burgesses of Dublin
1989 No. 9870P
High Court
19 June 1996
[1997] 1 I.L.R.M. 227
(Barron J)
BARRON J
delivered his judgment on 19 June 1996 saying: On 19 April 1984 the defendants granted permission for the development of lands at Newbridge Avenue, Londonbridge Road, Dublin 4 for the erection of 35 houses and 56 maisonettes. A number of conditions were imposed but the only one which is material to the present case is No. 7 which was as follows:
No part of the proposed houses or apartments shall be used for non-residential purposes such as offices, surgeries or consulting rooms.
It was said that the reason for this condition was to prevent unauthorised development and in the interest of residential amenity.
The development which was carried out is known as Lansdowne Village. At the time of the building of the estate, tax advantages were available for use of the houses and maisonettes as holiday homes. At least eight homes had to be involved and registration with Bord Filte was necessary. Under the provisions of the Act under which the advantages were provided, the use of such homes was deemed to be the business of hotel keeping.
The owners of ten of these homes took advantage of the scheme and such homes have at all material times been available for use by persons requiring short term lettings. They were managed by Trident Holiday Homes Ltd, a *229 management company the business of which is to provide holiday and other short term lettings at various sites around the city of Dublin.
Some time in 1987 a complaint was made to the defendants that this use was not a permitted use. Following upon such complaints, the matter was referred by the defendants to An Bord Pleanla. The reference was made by letter dated 7 June 1988. This reference made it clear that the defendants regarded the use of the homes as holiday homes as being a change of use. The letter also made it clear that the view of the defendants would be considerably strengthened if it was supported by An Bord Pleanla.
The ruling of An Bord Pleanla was given on 5 July 1989 and was as follows:
Whereas a question has arisen between Dublin Corporation and Trident Holiday Homes of Unit 2, Sandymount Village, Sandymount, Dublin as to whether the use of ten town houses at 38 to 46 and 48 Lansdowne Village off Newbridge Avenue, Sandymount, Dublin as holiday homes on a commercial basis is or is not development or exempted development within the meaning of the Local Government (Planning and Development) Acts 1963 to 1983.
And whereas the said question was, pursuant to s. 5 of the Local Government (Planning and Development) Act 1963 as amended referred to An Bord Pleanla by Dublin Corporation on 7 June 1988.
Now therefore An Bord Pleanla in exercise of the powers conferred on it by s. 5 of the Local Government (Planning and Development) Act 1963 as amended hereby decides that the said use is development and is not exempted development within the meaning of the said Acts.
The present proceedings are brought to obtain a declaration that the use to which these houses is being put is an authorised use. The plaintiffs also appeal against the decision of An Bord Pleanla.
A number of residents on the estate gave evidence that the use of these holiday homes causes them annoyance and disturbance. The major complaints related to noise, mainly of vehicles entering the estate in the early hours of the morning and disturbing those who are asleep. Other complaints were of rowdy behaviour at weekends, particularly those involving international rugby matches at nearby Lansdowne Road. As against this there was evidence from two residents who had no complaints and evidence from the managing director of the company which managed the homes who was herself a home owner and a director of the estate management company.
Having heard the evidence, I am satisfied that the residents are justified in many of their complaints. Two of them indicated that they did not become aware of these holiday homes for some three or four years. It seemed to me implicit in their evidence that there was more noise and disturbance in the estate than might *230 have been expected on an estate of that type, that they had been unable to understand why. Some of the complaints, particularly in relation to the large coach, were unreasonable. It happened once and the real complaint seems to have been the rudeness of the driver. It is perhaps unfortunate that complaints which in the main were grumbles among the residents themselves were never specifically referred to Trident Holiday Homes Ltd.
While I believe the properties used as holiday homes to be well managed, I have little doubt that those living near them would prefer more permanent neighbours. It must be expected that there may be some noisy neighbours in any estate, but the real problem with those using holiday homes is that the way of life which they follow is quite different from that of the permanent residents. In my view, this factor alone can reasonably be expected to cause complaints from the latter.
Although the homes have been referred to as holiday homes, their occupants are not always on holiday. Short term lettings are also made to business people and persons moving home and requiring temporary accommodation.
So far as the use of the homes is concerned, I accept that the owners are not necessarily carrying on the business of hotel keepers because such is deemed by the statute concerned. Nevertheless, the use is a commercial use. Each house is made available to agents who arrange short term lettings. The agent has a central office and all reservations are made through it. The nature of the operation can be seen clearly from the brochures which were put in evidence.
The plaintiffs submit that the uses were authorised by the planning permission. It is submitted that it is a residential use and that that is authorised. They refer also to condition 7 which refers to non-residential uses which are not permitted. The defendants on the other hand, submit that the only use permitted is as a private dwelling house and that the actual use is a material change of use. In reply to this latter submission, the plaintiffs submit that there can be no change of use since it is the only use to which the premises have ever been put.
S. 28(6) of the Local Government (Planning and Development) Act 1963 as amended is as follows:
Where permission is granted under this part of this Act for the construction, erection or making of a structure, the grant of permission may specify the purposes for which the structure may or may not be used, and in case such a 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 pursuant to s. 38 of this Act; and if no purpose is so specified, the permission shall be construed as including permission to use the structure for the purpose for which it is designed.
*231
The real issue in this case revolves around the permitted use of these houses and maisonettes. The proper application of this provision was considered in Readymix (ire) Ltd v. Dublin County Council Supreme Court 1970 No. 115, 30 July 1974.
In that case the issue was whether the premises could be used for the manufacture of concrete or a Readymix concrete. It was held in the High Court that no use had been specified and that accordingly the premises could be used for the purpose for which they were designed. In the context, design was regarded as intended and upon this basis it was held that use as a Readymix plant was authorised. On appeal to the Supreme Court, it was held that to determine whether or not a use was indicated it was necessary to look to the relevant documentation which included the planning application, the documents and plans submitted with it, and to the permission itself. On that basis it was held by a majority that the use had been specified, i.e., use for the manufacture of concrete. Accordingly, the question whether use for Readymix was a material change from such use was a matter to be determined under s. 5 of the Local Government (Planning and Development) Act 1963. In a minority judgment, Henchy J held that the question of use had to be considered objectively and upon that basis he also found that the permission specified the purpose for which the plant could be used being the production of Readymix concrete. He went on to consider the purpose for which the premises were designed in the event that he was wrong in his view that the use had been specified. Following Wilson v. West Sussex County Council [1963] 2 QB 764 and Belmont Farm Ltd v. Minister of Housing and Local Government (1962) 60 LGR 319, whatever meaning might be given to the word design, it could not be said that the permitted structure was not designed for the production of Readymix concrete.
A number of cases have been referred to in argument indicating similar uses which have or have not been held to have been authorised in the circumstances of the particular cases. In my view, none of these cases is of any assistance. Each depends upon its own facts and in particular upon the finding of fact as to the particular use being made of the premises. In the present case, the facts are clear. There are now 16 houses and maisonettes being managed by Trident Holiday Homes Ltd. These are being used commercially for short term lettings. Although this is a different use from use as a private dwelling, the question still remains to be decided as to whether or not both of these uses is permitted by the planning permission.
The plans and other documents submitted with the planning application have not been put in evidence. The nature of such documents cannot be assumed, but neither can it be assumed that there was anything on these documents which indicated specifically the use to which they were to be put.
This was a medium sized residential development. Prima facie, it would have been intended for private residential purposes. Residential amenity is referred *232 to as the reason for condition 7 of the permission. It is unlikely that permission would have been given for any use which would have affected residential amenity.
In my view, Lansdowne Village was one of many residential estates built in and around Dublin over the last 30 or 40 years. It would have been intended that the homes would have been purchased by owner occupiers. The fact that condition 7 refers to non-residential use does not, in my view, mean that any non-residential use was being permitted. I accept the submission made on behalf of the defendants that condition 7 relates to part only of the premises, not to the whole. This condition was inserted to prevent mixed residential and non-residential use. If such a condition had not been inserted, the types of non-residential use specified might have been permissible upon the basis that the substantial use would have been residential.
It is clear from the evidence that the planning authority did not consider the possibility of temporary residential use. If it had done so, it would not necessarily have refused permission, it would have sought to segregate the holiday homes from the permanent homes. Even though the use did not occur to the planners, it seems to me that what the developer intended was to build a housing estate which would have been understood as being essentially for owner occupiers or perhaps to be let out long term to take the benefit of statutory schemes.
The question to be decided in the absence of any use being specified in the planning permission is, for what purpose were the homes designed? What is important is the meaning to be attributed to the word designed. The cases to which I have already referred construe this word in the sense of intended. This seems to narrow the permitted use. You look to the documentation and determine objectively a particular use. Otherwise the permitted use would be any use to which the premises might be capable of being put. Admittedly, the Interpretation Act allows the last part of s. 28(6) to be read as relating to purposes rather than to a single purpose. But the tenor of the provisions suggests the singular rather than the plural. In the present instance, I am of the view that the purpose for which these homes was designed was private residential use.
It has been submitted that there can have been no change of use since the use of these homes was the first use to which they have been put. I cannot accept such an argument. If the houses and maisonettes were not used as authorised by the planning permission but used in a different manner then there must have been a change of use. Such a change of use was a material change and as such was unauthorised development. I would uphold the decision of An Bord Pleanla given on the reference to it under s. 5 of the Local Government (Planning and Development) Act 1963.
While I have dealt with all the holiday homes as being in the same situation, this is not strictly correct. At the date of the reference to An Bord Pleanla there were ten homes involved. At the date of issue of proceedings, there were 14. *233 There are now 16 involved. Nevertheless, on the view which I take, it is immaterial whether the first use of the homes was as holiday homes or whether this was a subsequent use. In the circumstances the relief claimed will be refused.
Palmerlane Ltd v An Bord Pleanála and the Lord Mayor, Aldermen and Burgesses of Dublin
(notice party)
1997 No. 343JR
High Court
28 January 1999
[1999] 2 I.L.R.M. 514
(McGuinness J)
McGUINNESS J
delivered her judgment on 28 January 1999 saying: In these judicial review proceedings the applicant seeks a number of reliefs in connection with an attempted reference to An Bord Pleanála pursuant to s. 5(1) of the Local Government (Planning and Development) Act 1963 (‘the 1963 Act’). The section in question, as amended by the Local Government (Planning and Development) Act 1976, provides as follows:
5
(1) If any question arises as to what in any particular case is or is not development or exempted development the question shall be referred to and decided by the board. ( i.e. An Bord Pleanála).
The applicant is a limited company which inter alia is the owner and operator of premises at 32 Dame St in the city of Dublin. These premises consist of a retail shop on the ground floor, storage facilities in the basement and a number of residential apartments on the upper floors. Planning permission for all these uses was granted by the planning authority, Dublin Corporation, on 14 April 1994.
*516
The retail shop on the premises is a convenience store of the type known as ‘Spar’. The applicant company operates a number of ‘Spar’ convenience stores in different locations. In common with many other convenience stores, part of the business consists of the sale of hot food for consumption off the premises. According to the affidavit of Bernard McHugh, chartered town planner, who has acted for the applicant company in its dealings with the planning authority and with An Bord Pleanála, this aspect of the business consists of the sale of ‘small quantities of hot bread, hot chickens, sausage rolls and similar type matters from a delicatessen counter within the retail premises’. Mr McHugh examined the position with the applicant’s architect and deposes that the business of the sale of hot food ‘amounted to no more than 2% of the total floor area of the building and that in terms of the turnover amounted to less than 2% of the sales of the premises.’ It is clear from the documentary evidence that this type of sale of hot food had been a part of the shop’s business since its commencement pursuant to the 1994 planning permission.
On 6 March 1996 the planning authority (the notice party) issued a warning notice pursuant to s. 26 of the Local Government (Planning and Development) Act 1976 as amended. This notice referred to an unauthorised use of part of the shop premises for the sale of take-away hot food and required that this unauthorised use should cease forthwith. If the unauthorised use was continued proceedings under s. 26 of the 1976 Act might be brought against the applicant. The penalties for conviction under s. 26 were set out at the foot of the notice.
The managing director of the applicant company contacted Mr McHugh, who entered into correspondence with the notice party in which he argued that the sale of hot food in the Dame Street shop was on a small scale and merely incidental to the general business of the shop. On 25 September 1996 Mr McHugh wrote to the planning department of Dublin Corporation. He acknowledged that the definition of the word ‘shop’ as set out in article 8 of the Local Government (Planning and Development) Regulations 1994 did not include use for the sale of hot food for consumption off the premises but submitted that the situation was covered by article 11 (4)(a) of the same regulations which provides ‘A use which is ordinarily incidental to any use specified in Part IV of the Second Schedule is not excluded from that use as an incident thereto merely by reason of its being specified in the said part of the said schedule as a separate use’.
The planning department did not agree with Mr McHugh’s submission and by letter dated 29 October 1996 they refused to withdraw the warning notice. For the purposes of the present proceedings there is no necessity for this Court to go into the detail of the case made by Mr McHugh to the notice party, still less to endeavour to decide the issue between them. It is sufficient to say that in my view the applicant company has at least a stateable case on the matter. It is *517 also a fact observable by any member of the general public that the vast majority of convenience stores operate a minor hot food business of the same nature as that operated by the applicant company, so that the question in regard to its permissibility as part of a ‘shop’ as defined in the planning regulations will in all probability arise in many other cases.
As the applicant, as advised by Mr McHugh, perceived matters, a dispute had arisen between it and the notice party as to whether the sale of hot food in the Dame Street shop was a development as defined in the planning legislation. Mr McHugh formed the opinion that a dispute had arisen in the case as to whether the alleged unauthorised use was development and/or exempted development and that this matter was required to be determined by An Bord Pleanála pursuant to s. 5 of the 1963 Act. On 4 February 1997, on the instructions of the applicant, Mr McHugh submitted a reference under s. 5 to An Bord Pleanála, together with the requisite fee. He put forward to the board a similar argument in regard to incidental or ancillary use as he had already put to Dublin Corporation. His letter of reference was quite lengthy and detailed, and included references to various aspects of planning law. It is exhibited with his affidavit; again it is not necessary here to go into the merits of his argument. On 16 April 1997 An Bord Pleanála replied seeking further information in regard to details of the hot food business. On 29 April 1997 Mr McHugh forwarded the information as requested by the board. Further correspondence ensued in regard to whether the matter was proper for a reference under s. 5 of the 1963 Act and the question was referred for decision to the board itself. On 1 August 1997 the respondent wrote to Mr McHugh as follows:
‘Re: Use of the limited part of shop, 32 Dame Street, for sale of hot food for consumption off the premises.
Dear Sirs
I have been asked by An Bord Pleanála to refer to the above matter and to your response of 12 June 1997 to the board’s letter of 30 May 1997.
The board has considered the points made by you in relation to whether a question has arisen in this particular case as to what is or is not development or exempted development. The board has concluded that your submissions to the board constitute a request for confirmation that the limited use of part of the shop for the sale of hot food for consumption off the premises (which use commenced when use as a shop commenced) is authorised by the planning permission granted for the shop. The board has no power under s. 5 of the Local Government (Planning and Development) Act 1963 or otherwise to decide whether or not a particular development has been carried out in accordance with a particular permission. The board’s powers under s. 5 of the Local Government (Planning and Development) Act 1963 are confined to determining questions which arise and are referred to the board as to what in any par *518 ticular case is or is not development or exempted development. In the circumstances of this case, it is considered that there is no valid reference before the board for determination under s. 5 of the 1963 Act.
Accordingly, your fee of £150 will be returned to you within the next few days.
The letter was signed by Ms Elizabeth Dolan, senior executive officer, on behalf of the board.
On 25 September 1997 the applicant issued the present judicial review proceedings. The applicant seeks the following reliefs:
(i) A declaration that the submission of the applicant dated 4 February 1997, ref. no. 29 SRF 0807 constitutes a reference for the purposes of s. 5 of the Local Government (Planning and Development) Act 1963;
(ii) An order of mandamus directing the respondent to determine the reference submitted in accordance with s. 5 of the Local Government (Planning and Development) Act 1961 ref. No. 29 SRF 0807, in accordance with the obligations placed upon it by the aforesaid section;
(iii) An order of certiorari quashing the decision of the respondent dated 1 August 1997 to refuse to consider the reference made on 4 February 1997 and holding that the said submission did not constitute a reference for the purposes of s. 5 of the Local Government (Planning and Development) Act 1963.
The applicant relies, inter alia, on the following grounds:
(9) The respondent erred in law in holding that the submission dated 4 February 1997 was not a reference for the purposes of s. 5 of the Local Government (Planning and Development) Act 1963 in view of the nature of the issue which the aforesaid submission raised.
(10) The respondent erred in law in holding that a use which is authorised either wholly or partly under a planning permission granted under Part IV of the Local Government (Planning and Development) Act 1963 or relates to the said permission cannot give rise to a reference under s. 5 of the Local Government (Planning and Development) Act 1963.
(11) The applicant submitted a valid reference under s. 5 of the Local Government (Planning and Development) Act 1963 and was entitled to have the matter determined by An Bord Pleanála having regard to the issues which were raised within that reference.
(12) The respondent made errors of law and fact in holding that the retail unit was wholly dependent on the planning permission granted and that no pre-existing retail use had existed on the site. The issue of whether the ancillary use of part of a retail outlet for the sale of hot food for consumption off the premises, whether or not that use has been authorised by a specific grant of planning permission, is a proper issue for determination by the *519 board under s. 5 of the Local Government (Planning and Development) Act 1963.
(13) The decision of the respondent is unreasonable and contrary to plain reason and common sense.
(14) The respondent failed to have any regard to matters that it ought to have regard to and took into account matters which it ought not to have regard to and in the circumstances, the decision is ultra vires the power of the respondent.
It appears from internal board documentation exhibited in the affidavit sworn by Mr McHugh on 26 September 1997 that the main, and indeed really the only, difficulty that the board had with accepting and dealing with the applicant’s s. 5 reference was that the sale of hot food had commenced at the same time as the opening of the shop. The board had before it a memorandum dated 8 July 1997 from Mr Padraic Thornton, senior inspector of the board. Mr Thornton referred to the submissions made by Mr McHugh and stated:
Mr McHugh’s submission states that An Bord Pleanála is being asked to decide whether in this particular case the limited use of part of this shop for the sale of hot food for consumption off the premises is development or exempted development. It is accepted that the existing use commenced when the use as a shop commenced. It is not argued that use as a shop is not development or exempted development. It seems to me accordingly that the board is being asked to decide whether or not the existing use is in accordance with the planning permission. This would require considering issues such as whether permission granted for a ‘shop’ on 8 June 1994 without any conditions relating to the sale of hot food for consumption off the premises would allow for the ‘shop’ to be used either wholly or partly for such use. I do not consider that the board has a function in deciding this issue. If the element of sale of hot food for consumption off the premises had been introduced subsequent to the premises being used as a shop without this use the board would clearly have a function. The board does not however, deal with theoretical situations. There clearly seems to have been a material change of use when the existing use commenced. No argument to the contrary has been submitted. I am not aware of any other ‘development’ or activity or action or works which might be the subject matter of the reference.
This is confirmed by the affidavit of Elizabeth Dolan, senior administrative officer, on behalf of the respondent. In that affidavit she refers by way of contrast to a previous reference determined by the board on 17 November 1995 and exhibits the determination of the board in that case. The case in question involved the sale of hot food for consumption off the premises by a supermarket in Cork. As was pointed out by Ms Dolan, in that case the user of a portion of the premises for the sale of hot food was introduced as a new use into a pre-existing and established use as supermarket premises. In the event the board *520 determined in the Cork case that the use of the shop for the sale of hot food for consumption off the premises on a limited scale did not constitute a material change of use and was therefore not a development.
The question at issue between the applicant and the respondent here, therefore, appears to be very much a net point — whether the fact that the sale of hot food in the applicant’s shop commenced on the same date as the opening of the business pursuant to the 1994 planning permission disentitles the applicant from seeking a reference pursuant to s. 5 of the 1963 Act.
In his submissions to the court, senior counsel for the applicant, Mr Connolly SC, while drawing attention to a number of previous cases, relied largely on the decision of the learned Barron J in McMahon v. Dublin Corporation [1997] 1 ILRM 227. In that case, as is set out in the head note, the plaintiffs who were owners of a number of homes in a new housing development took part in a scheme which involved tax advantages where houses and maisonettes were used as holiday homes. The homes were thereafter available for short term lettings through a management company providing holiday and other short term lettings. In 1987 a complaint was made to the defendants that this was not a permitted use. Condition 7 which was attached to the planning permission for the housing development was that ‘no part of the proposed houses or apartments shall be used for non-residential purposes such as offices, surgeries or consulting rooms.’ The reason stated for this condition was ‘to prevent unauthorised development and in the interest of residential amenity’. The matter was referred by the defendants, who regarded the use of the homes as holiday homes as being a change of use, to An Bord Pleanála who ruled pursuant to s. 5 of the Local Government (Planning and Development) Act 1963 that the use was a development. The plaintiffs appealed against the decision of An Bord Pleanála. The learned Barron J in the event upheld the decision of An Bord Pleanála.
During the case the question arose as to whether the use as holiday homes could be a material change of use, and thus a development, in the situation where in fact this was the first and only use to which the houses had ever been put.
At p. 232 of the report the learned Barron J dealt with this question as follows:
It has been submitted that there can have been no change of use since the use of these homes was the first use to which they have been put. I cannot accept such an argument. If the houses and maisonettes were not used as authorised by the planning permission but used in a different manner then there must have been a change of use. Such a change of use was a material change and as such was unauthorised development. I would uphold the decision of An Bord Pleanála given on the reference to it under s. 5 of the Local Government (Planning and Development) Act 1963.
*521
While McMahon v. Dublin Corporation was decided by Barron J while still a judge of the High Court and is therefore strictly speaking persuasive rather than binding authority, it is an authority for which I would have the greatest respect and I have no difficulty in following it. It must, I think, also be noted that in the McMahon case the board accepted and determined a reference under s. 5 despite the fact that the user in question dated from the time the houses were built. This was indeed effectively a decision that the use of the houses as holiday homes and temporary lettings was not in accordance with the relevant planning permission.
I find it somewhat difficult to distinguish the factual position in the instant case from that in the McMahon case. The decision of An Bord Pleanála in the instant case also, in my view, creates the somewhat anomalous and unreasonable situation that if the applicant were to select another of its ‘Spar’ shops, where the position was that the premises had been in use as a retail shop under an earlier planning permission and the company had subsequently embarked on the limited sale of hot food for consumption off the premises, the applicant could presumably successfully have sought a determination of a reference pursuant to s. 5 of the 1963 Act. I appreciate that each determination under s. 5 deals only with the particular case on its own facts. However, in a situation where a very large number of convenience stores operate in the same way as the shop in question in the instant case, it seems to me to be in accordance with reason and common sense that questions such as this should be determined on a consistent basis by those with expertise in the planning area, namely An Bord Pleanála.
The alternative appears to be to have one set of stores (who started to sell hot food from the date of the grant of planning permission) dealt with in a series of prosecutions in different District Courts, while another set of stores, who might well belong to the same chain, would be dealt with by means of references under s. 5 to An Bord Pleanála.
Bearing these considerations in mind, and following the authority of the McMahon case, I will grant the following reliefs as sought by the applicant:
(i) A declaration that the submission of the applicant dated 4 February 1997 ref. no. 29 SRF 0807, constitutes a reference for the purposes of s. 5 of the Local Government (Planning and Development) Act 1963;
(ii) An order of certiorari quashing the decision of the respondent dated 1 August 1997 to refuse to consider the reference made on 4 February 1997 and holding that the said submission did not constitute a reference for the purposes of s. 5 of the Local Government (Planning and Development) Act 1963.
I will not, at this point, make the order of mandamus sought by the applicant as I feel sure that, following on the granting of the other reliefs, an order of mandamus will not be necessary.
Creedon v Dublin Corporation
1978 No. 267
Supreme Court
11 February 1983
[1983] I.L.R.M. 339
(nem. diss.) (O’Higgins CJ, Hederman and McCarthy JJ)
(O’Higgins CJ and Hederman JJ concurring) delivered his judgment on 11 February 1983 saying: the plaintiff is the owner of No. 30 Dartmouth Square, Dublin; on 3 June 1975, she applied to the defendant, the housing authority, for permission under s. 4 of the Housing Act, 1969 to use the premises other than for human habitation, in an application which provided for the construction of the mews residence or extension with residential accommodation; by letter of 4 July 1975, the defendant refused her permission ‘for the reason that such change of use would result in a reduction in the supply of housing in the functional area of the Corporation’. In these proceedings, which have, indeed, pursued a somewhat leisurely course, the plaintiff claims:
(a) A declaration that the said decision is in conflict with the facts upon which it purports to be based, is unreasonable, and contrary to natural justice.
(b) An order setting aside the said decision and declaring that the plaintiff be deemed to have obtained a permission by default on the expiration of five weeks from 3 June 1975.
This second and consequential part of the plaintiff’s claim arises from the provisions of s. 4 sub-s. 5 of the Housing Act 1969, which states:
(a) Where —
(i) an application is made to a housing authority in accordance with s. 3 for a permission under this section, and
(ii) the housing authority do not give notice to the applicant of their decision within the appropriate period, a decision by the authority to grant permission shall be regarded as having been given on the last day of that period.
In this case, the period was one of five weeks beginning on the date of receipt by the housing authority of the application and it is the plaintiff’s contention that the decision to refuse permission as conveyed in the letter of 1 July 1975 was a nullity and, consequently, the housing authority had not given notice to the applicant of their decision within the appropriate period so that a decision to grant the permission is to be regarded as having been given. By virtue of s. 4 sub-s. 6 of the Act of 1969, a right of appeal to the Minister is given to any person to whom a permission has either been refused or granted subject to conditions. It is relevant also to refer to the provisions of s. 10 of the Act of 1969:
In case a permission is required under this Act and under Part IV of the Act of 1963 in relation to a habitable house, the application for a permission under the Act of 1963 may be made at any time and whenever the application under the Act of 1963 is made the following provisions shall apply:
(a) the application under the Act of 1963 shall not be decided until an application under s. 3 has been fully determined;
(b) subject to (c), the references in s. 26 sub-s. 4(b) of the Act of 1963 to the period *341 of two months beginning on the day of receipt by the planning authority of the application shall be construed as references to the period of five weeks beginning on — (i) in case no appeal is taken under s. 4 — the day on which the decision is given, or is regarded as having been given, under this Act by the housing authority, and (ii) in case an appeal is so taken — the day on which the appeal is withdrawn or is determined by the Minister, as may be appropriate,
provided that, in case the day mentioned in sub-paragraph (i) or the day mentioned in sub-paragraph (ii) occurs less than two months after the receipt by the planning authority of the application, this paragraph shall not have effect;
(c) in case a permission under this Act is refused (whether on the original application or on appeal), the application under the Act of 1963, in so far, but only in so far, as it relates to the relevant house, shall not be considered and accordingly, s. 26 sub-s. 4(a) of the Act of 1963 shall cease to apply in relation to the house; and
(d) in case a permission under this Act is granted subject to conditions, the planning authority or the Minister when considering the application or the appeal, as the case may be, under the Act of 1963, shall have regard to the conditions.
The effect of s. 10 in the present case, it is contended, would be that the default permission under s. 4 but would carry with it the necessary planning permission under the 1963 Act.
THE STATUTE
The Housing Act 1969, in a sense, is supplemental to the Local Government (Planning and Development) Act 1963. S. 2 creates an obligation to obtain permission to use any habitable house otherwise than for human habitation. S. 3 of the 1963 Act includes in ‘development’ the making of any material change in the use of any structure, and would appear to catch a change of use such as envisaged here. S. 4 sub-s. 2 of the 1969 Act states two criteria for application by the housing authority: (i) (here irrelevant) the state of repair of the house to which the application relates and, (ii) the adequacy of the supply of housing available in the functional area of the housing authority. It seems to me that it is a distortion of language to say that ‘the supply of housing available’ includes short or long term provision for construction of further housing in a functional area; the housing authority, in the instant case, considered that, effectively, the mere substitution of one housing unit for another, not, essentially, increasing the total supply of houses, was a ground for refusal; if this were so, it would seem to follow that no permission could ever be granted until the supply of housing was adequate. I recognise that the statutory provision is that ‘the authority may grant’ but, at first sight, it would seem that s. 4 (i) is intended to permit the change from human habitation, without, necessarily, requiring any substitute. Sub-s. 3 enables the housing authority to impose a condition requiring the provision by the applicant of residential accommodation wholly of partly to replace the accommodation which it is intended to use otherwise than for human habitation — it, further, envisages the applicant making a payment towards expenditure, including buying land, ‘incurred, or which is likely to be incurred, by a housing authority in providing such residential accommodation’. This does not mean that there must be such a condition, but it certainly seems to establish that the housing authority in the instant case, misconceived its function, misconstrued the law, or whatever — it came to an invalid decision.
*342
EFFECT
At the time the housing authority considered the application, there was in existence an application for planning permission which, apparently, by agreement between the parties, had been postponed. The housing authority is the planning authority under another hat. The decision of the housing authority was made 4 weeks after the application — there being a 5 week limit; if the planning application was made, as it was, a long time before the housing application then s. 10 of the 1969 Act will come into play if the present action succeeds — if the decision of the housing authority was a nullity, and it follows, as is argued, that the permission under s. 4 of 1969 is deemed to have been granted after the lapse of 5 weeks during which no valid decision was made; it follows that the planning permission tied on to it is also deemed to have been granted — without conditions and without the opportunity of appeal .
Such a result is deplorable but it may not be unlawful. The decision of this Court in The State (Abenglen Properties Ltd) v Dublin Corporation [1982] ILRM 590 would seem to point the other way. In an application for certiorari the applicant sought to quash an invalid condition, as a result of which he would have obtained a permission free from that condition — the court refused to help him. There were factors of deliberate waiting etc. that may not be common to the instant case. Here, the plaintiff apparently consulted her legal advisers which resulted in some delay and it was not until some 5 months after the decision that proceedings were brought, not by way of certiorari, but by plenary summons. If the remedy equally well lay in certiorari, it would seem to follow that the discretionary tests are the same — indeed, since it is an invocation of the courts equitable jurisdiction, the discretion would seem to be equally applicable.
The function of this Court is to seek to determine the meaning and purpose of legislation of this kind — it is not to that purpose to allow the legislation to be used, in effect, to defeat the obvious purpose — (in the 1969 Act) — the maintenance of a certain level of habitable accommodation — (in the 1963 Act) the control of planning. Whilst the initial steps in such legislative schemes are given to the local Authority in some guise or other, there is a certain area of operation — a second flight to the steps, where appeal can be brought to the Minister or to the Planning Board. It was never the intention of the legislature that mistakes by planning or housing authorities — misconstructions of their powers — misconception of the facts or the like — would be used as a basis for abandoning the statutory procedures and seeking to use the courts as some form of licensing or enabling authority in a field in which the legislative and executive organs of government have prime responsibility. It is not the function of the judicial arm of government to aid an owner of property who, so to speak, is fortunate enough to have some innocent error made in his particular application, and so aid him as in effect, to grant him a housing permission or a planning permission which it is the express decision of the relevant authority not to grant. The observations of the Chief Justice and Walsh J in the Abenglen case are highly relevant in the present application; I am far from suggesting that there had been any improper conduct on the part of the present applicant — she has merely sought to use what she believed to be a legal advantage that fell into her lap. In my view to permit *343 such a use is not the function of the courts — there may well be cases where it can be demonstrated that there has been bad faith on the part of the authority concerned, as is illustrated by the references made by O’Dalaigh CJ in Listowel UDC v McDonagh [1968] IR 312, and such bad faith would not be confined by any stated limits, but, in a case such as the present, where no allegation of any impropriety, ulterior motive, or anything save a mistake in law, is suggested, in my view, the necessity for the applicant to exhaust the statutory remedies is a complete answer to any claim to the discretionary assistance of the courts.
It may well be that there is no legitimate answer to the plaintiff’s claim for the permission under s. 3 of the Act of 1969, there may be a variety of answers to the application for planning permission under s. 26 of the Act of 1963 or there may be very appropriate conditions to be attached to any such planning permission, and the interests of third parties are to be considered. This Court should unequivocally condemn attempts to sidestep the legislative and administrative procedures by recourse to the courts.
I would dismiss the appeal.