Gerard and Teresa Dooner (applicants) v. Longford County Council (respondent) and Dan Magan (notice party).
Judicial review - Planning - Planning permission granted by An Bord Pleanala - Conditions attached to planning permission - Alterations made to planning permission by agreement between planning authority and developer - Margin of discretion available to planning authority - Whether breach of limited flexibility allowed to planning authority - Whether valid exercise of powers of planning authority - Planning and Development Act 2000 (No.30)(as amended), s.50.
The High Court (Mr Justice McGovern); judgment delivered on October 25th, 2007.
An Bord Pleanala may impose conditions which leave certain matters to be agreed between the developer and the planning authority, but such conditions may only allow for a limited degree of flexibility having regard to the nature of the enterprise. An agreement between a planning authority and a developer which purports to permit development beyond that degree of flexibility is ultra vires the powers of the planning authority.
The High Court so held in quashing the decision of the respondent.
Esmond Keane, SC, and Maura McNally, BL, for the applicants; Michael Collins, SC, and Peter Bland, BL, for the respondent; Frank Callanan, SC, and Sarah Belshaw, BL, for the notice party.
Mr Justice McGovern commenced his judgment with a description of the nature of the proceedings. The notice party submitted an application for planning permission under the Planning Acts for construction of a mixed use development in the village of Killashee, Co Longford. The development consisted of four parts, including a three-story block comprising retail units, crèche facilities and five town houses. There were also plans for a two-story block comprising a restaurant, associated car parking and landscaping. The location of the development was shown on plans and particulars submitted to the respondent by the notice party at the time of the application and in further information furnished on the February 18th, 2005 and May 13th, 2005. On June 8th, 2005, the respondent granted planning permission to the notice party to carry out the development. The applicants appealed the decision. On December 15th, 2005, An Bord Pleanala granted permission for the proposed development subject to 20 conditions, the following of which were relevant:
"1. The development shall be carried out in accordance with the plans and particulars lodged with the application as amended by further plans and particulars received by the Planning Authority . . . except as may otherwise by required in order to comply with the following conditions."
"11. The two mature walnut trees and the mature beech tree in the vicinity of the agricultural access (as originally proposed) shall be retained on site. These trees shall be protected during the construction period by the erection of stout timber fences . . . the areas beneath the trees shall not be used for storage of [ any] materials . . . which could cause damage to the root systems of the trees . . ."
"15. Alterations to the alignment of the N63 . . . shall be carried out at the expense of the developer, to the standards of, and with the agreement of, the Planning Authority . . ."
In or about January 8th 2007, the notice party responded by letter to the respondent through its engineer, Mr Cunningham, wherein Mr Cunningham dealt with the conditions as follows:
"The developer shall fully comply with Condition No. 1 in full [ except] as may otherwise be required in order to comply with the following conditions . . .
. . . please note that the developer will construct a stout timber fence around the truck of each tree . . . and that the trees shall not be used for storage of [ any] materials . . . so as to ensure that no damage is caused to the root system of the trees . . . In relation to Condition No. 15 of the [ planning permission], please note that it is our opinion that the building should be relocated in the north-eastern direction . . . so as to facilitate a larger localised carriage widening so as to allow the safe negotiating of the nearby bend for larger articulated vehicles . . "
On February 22nd, 2007, Mr Cunningham wrote again to the respondent with particular reference to conditions 11 and 15. He referred to an arboriculture assessment in which it was recommended that the proposed building should be repositioned approximately 14.5m in the north-western direction in order to ensure the protection of the two walnut trees. A revised site layout drawing was enclosed.
Mr Justice McGovern noted that when the various drawings and plans were produced in the course of the hearing it became immediately apparent that the building could not have been moved to the north-west because it would have brought the buildings closer to the N63 and also encroached upon the trees. Mr Justice McGovern further noted that one of the features in the case was a significant element of vagueness and uncertainty in the positioning of buildings, trees and other relevant fixed data on the drawings and maps. Mr Justice McGovern said that when An Bord Pleanala granted planning permission for the development subject to conditions it was clear that two of the matters of concern were the preservation of two mature walnut trees and the realignment of the N63. The development was to be carried out in accordance with the plans and particulars lodged with the application as amended by further plans and particulars received by the planning authority in February and May, 2005. On March 7th, 2007, the respondent wrote to the notice party and referred to the proposals made by Mr Cunningham concerning conditions 11 and 15. The submissions of Mr Cunningham appeared to be those contained in his letter of February 22nd, 2007, to the respondent and included the proposal that the building be repositioned approximately 14.5m "in the north-western direction . . ." and a proposal to put in a raft foundation to support the building loads close to the walnut trees. The respondent's letter of March 7th, 2007, confirmed that the notice party's proposals were acceptable subject to some further provisions of the road design department of the local authority. When the applicants became aware of that, they wrote to the respondent pointing out that the conditions relating to the walnut trees had not been complied with and asked for confirmation that the letter purported to give permission to the notice party to reposition his building. The confusion about the direction in which the building was to be moved continued. In any event, what transpired was that the notice party produced a plan on which the new position of the building was shown as being located 14.5m to the north-east of where it had been originally shown. This was ultimately agreed with the respondent.
In considering the case made by the applicant, Mr Justice McGovern said that An Bord Pleanala granted permission for the development subject to 20 conditions. Some of the conditions required agreement to be reached with the local authority concerning the realignment of the N63. The applicants accepted that An Bord Pleanala was entitled to impose conditions leaving certain matters to be agreed between the developer and the planning authority but argued that such conditions only allowed for a certain limited degree of flexibility having regard to the nature of the enterprise. In support of that the applicant cited Boland v. An Bord Pleanala [ 1996]3 IR 435. The applicant contended that in the instant case the local authority permitted the realignment of the road and the consequent movement of the main building by a distance of 14.5m. The applicant contended that the moving of the building by an extent approaching 50 per cent of its length immediately adjacent to a public highway and within an urban setting fell far outside the limited scope permitted in law and was, in effect, such a radical departure from the plans that it required a new planning application. The applicants claimed that while they took part in the planning process at the application to the respondent and on appeal to An Bord Pleanala, it was not a party to the discussions which culminated in the agreement between the respondent and the notice party as set out in the letter of March 7th, 2007. The applicants claimed that since that letter constituted an agreement between the respondent and the notice party going far beyond the permission granted by An Bord Pleanala, the respondent had acted ultra vires. The applicants also claimed that the decision was unreasonable in that it was based on incorrect and misleading information.
Mr Justice McGovern said that the respondent and the notice party between them claimed that the respondent had authority to conclude the agreement because of the condition 15 which provided for the realignment of the road. They contended that the respondent was not only empowered but obliged to enter an agreement with the notice party pursuant to the board's decision and that the movement of the building was necessary having regard to the realignment of the road. Further, they argued that the agreement between the respondent and the notice party was a valid exercise and that the power to agree such alterations was lawfully delegated by An Bord Pleanala. It was contended that the movement of the principal building was required both to comply with the condition related to the realignment of the road and also to protect the trees. The notice party argued that the applicants had not shown any prejudice and that they had delayed in making the application. The respondent contended that if the applicants wished to restrain an unauthorised development the appropriate means of doing so was by way of s.160 of the Planning and Development Act 2000. The respondent and the notice party said that it was entirely inappropriate to seek such relief in judicial review proceedings seeking to quash a decision of the planning authority.
Mr Justice McGovern considered the legal authorities which were opened to the court. In Boland v. An Bord Pleanala [ 1996]3 IR 435, the Supreme Court set out the criteria to which An Bord Pleanala was entitled to have regard in deciding whether to impose a condition leaving a matter to be agreed between the developer and the planning authority. In that case, Hamilton C.J. stated at p.466:
"In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the board is entitled to have regard to:
the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require redesign in the light of practical experience . . ."
In Boland v. An Bord Pleanala the court held the matters stipulated in the conditions referred to in the case were essentially technical matters relating to the control of the flow of traffic. In the case of O'Connor v. Dublin Corporation & Anor. (unreported, O'Neill J., 3/10/00) the court held that significant changes in two internal blocks in part of a development were material alterations to the planning permission granted by An Bord Pleanala and an agreement between the planning authority and the developer which purported to permit these alterations was ultra vires the powers of the planning authority. In that case the court held that "the reasonableness test" as laid down in O'Keeffe v. An Bord Pleanala was not the appropriate way of looking at the matter but rather it should be approached on the basis of ascertaining the true and correct meaning of the conditions and whether the respondents had power to agree to the conditions which were in issue. Mr Justice McGovern stated that that was the way he approached the issues which arose in the instant case. Mr Justice McGovern was satisfied that in deciding upon the issues in the case, the court had to consider two matters. The first was whether the respondent had jurisdiction to conclude an agreement with the notice party and if the answer was yes, then whether the respondent had jurisdiction to conclude the particular agreement as evidenced by the letter of March 7th, 2007.
Having heard the evidence, Mr Justice McGovern made certain findings.
Mr Justice McGovern said that the parties to the application before the court accepted that the applicants had a substantial interest in the matter which gave them sufficient locus standi to bring the application. The court was satisfied that there was no unnecessary delay on the part of the applicants in bringing the application and that they had acted promptly. Furthermore, the applicants were entitled to proceed as they did by way of judicial review and not by way of an application pursuant to s.160 of the Planning and Development Act 2000 which provided for injunctions in relation to unauthorised development. The decision of An Bord Pleanala made on December 15th, 2005, was not appealed by the applicants. Mr Justice McGovern was satisfied that the decision imposed certain conditions which had to be complied with if the development was to proceed. Those conditions included the requirement on the respondent and the notice party to agree certain matters relating to the preservation of two walnut trees and the realignment of the N63 road adjacent to the site. Clearly, therefore, the respondent did have jurisdiction to conclude an agreement with the developer relating to those matters. Not only did the respondent and the notice party have power to enter into an agreement but they were obliged to do so.
Mr Justice McGovern stated that the real question in the case was whether the respondent had power to enter into the agreement which was concluded. In order to answer that question one had to determine whether it came within the ambit of the Boland case. In other words, was it an agreement which left to the notice party a "certain limited degree of flexibility having regard to the nature of the enterprise". In the Boland case the court held that one of the matters to be taken into account was the functions and responsibilities of the planning authority. Undoubtedly the respondents had functions and responsibilities with regard to the road network including the N63 where it passed the development site. It was entirely legitimate for the respondent to enter into an agreement with the notice party concerning the realignment of the N63 and how that could best be done.
Mr Justice McGovern said that the applicants engaged in the planning process and objected to the development when it was being considered by the respondent. The development was allowed to proceed and the applicants then appealed to An Bord Pleanala. Again they were unsuccessful. The conditions which were then agreed resulted from information which evolved through reports long after the decision of An Bord Pleanala. The decision of An Bord Pleanala was made on December 15th, 2005. The first time the issue of moving the building some 14.5 meters to the north-east arose was in early 2007. The applicants had no involvement in the decision to permit that change in the development and argued that it was not within the sphere of limited flexibility that would be permitted by Boland v An Bord Pleanala.
Mr Justice McGovern noted that it was not the function of the court to decide whether any building within the development should be moved to one place or another within the site but that the courts did have a function in deciding whether or not what was permitted by the respondent came within the permissible limits which had been placed on local authorities when entering into agreements with developers following on conditions imposed by An Bord Pleanala. There was no dispute that the respondent had accepted proposals which would involve moving the main building in the development by 14.5 metres to the north-east. In the court's opinion, this was a substantial movement having regard to the nature of the site and did not come within the limited degree of flexibility permitted to developers by Boland v An Bord Pleanala. Mr Justice McGovern held that the respondent acted ultra vires in reaching an agreement with the notice party which permitted such an extensive departure from the drawings and plans which had been submitted to An Bord Pleanala and formed the basis of the decision by the board.
Mr Justice McGovern said that the court could not express any views as to whether or not the applicants were likely to succeed in their objections to the proposed site of the main building. This would be a matter for the planning authority and, on appeal, An Bord Pleanala should the matter come before it.
Given that the respondent had acted ultra vires in entering into the agreement reached on March 7th, 2007, Mr Justice McGovern held that the decision be quashed. It followed that if the notice party wished to proceed with the development in accordance with the terms agreed in the letter of March 7th, 2007, that that should form the basis of a new planning application.
Solicitors: Brendan T. Muldowney & Co (Longford) (for the applicants); E.C. Gearty & Co. (Longford) (for the respondent); Connellan Solicitors (Longford) (for the notice party).
Kieran O'Callaghan, barrister.