The High Court gave the go-ahead yesterday for the Knocknacarra shopping development in Galway.
Mrs Justice McGuinness rejected a challenge by an elderly woman, Ms Anne Hynes, to a decision of June 25th, 1997, by An Bord Pleanala granting permission for the development.
The permission was granted to Mr Patrick Joyce, a retailer, for the development of three houses, an apartment, a community centre, a shopping/retail area, related offices and a petrol filling station at Shangort Road, Knocknacarra.
The lands in question are mainly owned by Mr Joyce but also include a small portion of land owned by Galway Corporation which it acquired for road-widening in 1982. Some of the land was used in that regard but the court was told the remaining lands were "in effect redundant".
Ms Hynes (84), of Old Clybaun Road, Knocknacarra, had claimed the development would adversely affect her quality of life and that of her family.
She challenged the development by way of judicial review proceedings against An Bord Pleanala, Mr Joyce and Galway Corporation.
In her reserved judgment, Mrs Justice McGuinness said the applicant relied on alleged defects in Mr Joyce's original application for planning permission and in the planning procedure of the corporation in the matter.
She noted that in December 1996 the then acting assistant Town Clerk of Galway told Mr Joyce in a letter that the corporation had no objection to his including lands owned by the corporation for the purpose of submitting the planning application, but added that this did not confer any right or legal title to the lands in question and, in the event of the corporation disposing of the lands, this would be subject to city council approval and normal statutory and legal procedures.
The judge said it was "common case" that the letter was not put on the corporation's planning file, which by law was required to be open for public inspection until June 1997. She said the Galway Assistant Town Clerk, Ms Martina Moloney, had said in an affidavit that the developer's application was made with the approval of the corporation from the outset to ensure that if a development took place it would incorporate the corporation's lands "in the interests of proper planning and development".
She said the development site was located in an area zoned for residential use in the corporation's 1991 development plan and it was common case that it materially contravened that plan. The corporation could only grant permission for the development if it passed a resolution to that effect. The resolution was passed but not by the required three-quarters majority and the City Manager made an order refusing planning permission for the development in December 1996.
Mr Joyce appealed that decision to An Bord Pleanala, which granted permission, subject to 20 conditions, on June 25th, 1997. Ms Hynes sought to overturn that.
Rejecting the application, the judge said she must hold that the various infirmities which affected the corporation's planning procedure were irrelevant to the validity of the board's decision.
On the facts of the case, she considered the developer had sufficient interest in the property to make a valid application and she also considered he had sufficient consent for that application.
She said it was common case that the developer was mis-described as owner of all the lands in the original application. But the accompanying map clarified the situation. In all the circumstances, she would refuse to quash the permission. But, she added, the procedure adopted by the corporation should not pass entirely without comment. While there was no evidence of either wrongful connivance or officials acting without proper authority, the management of the application "left much to be desired". While she accepted that material existed on the planning file which made it clear some of the land was in the ownership of the corporation, the lack of clarity about the situation was "bound to create an impression that the planning officials were less than open with both the elected members and the general public".
The issue of costs was adjourned to October 5th. Mr James Connolly SC, for Ms Hynes, said he would be seeking costs against Galway Corporation.