De Faoite v. Bord Pleanala [2000] IEHC 154 (2nd May, 2000)

JUDGMENT of Miss Justice Laffoy delivered on the 2nd day of May 2000 BACKGROUND 1. On the 23rd day of June 1998 Cork Corporation made a decision to grant planning permission subject to conditions to Kenny Brothers (the Developer) for a development consisting of the construction of 202 dwelling houses, site development for 8 sites and associated site works at Mount St. Joseph's, Blarney Street, Cork. That decision was the subject of three appeals to the Respondent (the Board): an appeal by the Developer; an appeal by the Applicant on behalf of Cumann Peile Garran-na-mBrathar (the Club); and an appeal by Patrick G. Sheridan, whose appeal was withdrawn before the Board gave its decision. 2. On the 13th day of July 1999 the Applicant made a submission in writing to the Board setting out the Club's grounds of appeal and its objections to the proposed development. The gravamen of the Club's objections was that part of what it contended was a former sport field and green area at Mount St. Joseph's was to be developed for housing at a time when the Club had experienced extreme difficulty in obtaining suitable playing fields for the local community in a densely populated area. The Club's case is encapsulated in the following passage from the submission:- "We are entitled to play our own games in our own area and we demand that this entitlement be not stolen from us. We are not provided for, we need an area of six acres for a playing pitch. The field at Mount. St. Joseph's which was used as a playing pitch is an ideal location for us in this congested, densely populated, crammed district and we object to what can be a wonderful facility for our club being built on." 3. A subsidiary point was made in the submission: the Club objected to the development because it would add further to the density of building in the area. 4. In the course of the appeal process, the Board's inspector, B. S. Cranwell (the Inspector), submitted a report dated the 6th day of December 1999 to the Board. In the report, the Inspector referred to the Club's submission, which was supported by a similar submission from Shandon Rovers Hurling Club, and, in particular, the Club's contention that the appeal site had once been used as a playing pitch and should be retained to provide a green area in a densely populated area. He also referred to the Developer's response that the lack of a proper sports field was a matter between the Club and Cork Corporation and that the appeal site was private property and never used as a public sports ground. The Inspector in his assessment and recommendation, with reference to the Club's submissions, stated that the Club's problems were a matter between themselves and Cork Corporation and that there was no evidence that "the appeal site was ever used for public playing fields." The issue of density arose in the consideration by the Inspector of conditions which had been imposed by Cork Corporation in relation to omission of sites and substitution of house types. The Inspector's overall recommendation was that permission be granted subject to conditions. 5. On the 19th day of January 2000 the Board made its decision on the appeal and it decided to grant permission for the development subject to the conditions specified in the second schedule. Among the conditions was a typical condition in relation to the landscaping of the areas shown as public open space on the lodged plans and the reason ascribed for this condition was that it was in the interest of the amenities of the occupants of the proposed housing. THIS APPLICATION 6. On this application the Applicant seeks leave to apply by way of judicial review for an Order of Certiorari quashing the decision of the Board. Essentially, in her statement filed in Court grounding this application, the Applicant seeks that relief on a number of grounds which can be subsumed into three grounds, namely: (a) that in the interest of orderly development of the area there should be amenity space in the area for sporting activities; (b) that, when the decision was made, the Developer resiled from an agreement to donate a site and £20,000 to the Club in return for the Club withdrawing its objections to the proposed development; and (c) that the height, density and scale of the proposed development is out of character with the existing development in the vicinity of a quiet and old area at the entrance to Cork City and, as such, would seriously injure the amenities of the area and the property of the area and is contrary to proper planning and development of the area. THE LAW 7. Under the law there is only one way in which a decision of the Board on appeal can be challenged. Section 82 (3A) of the Local Government (Planning and Development) Act, 1963 , (the Act of 1963), as inserted by section 19 (3) of the Local Government (Planning and Development) Act, 1992 , provides that a person shall not question the validity of, inter alia , a decision of the Board on any appeal otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts, 1986. Moreover, section 82(3B) imposes a higher threshold for an Applicant seeking to judicially review a planning decision than has to be met on any other application for leave to apply for judicial review: subsection (3B) provides that leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. As to what constitutes "substantial grounds", the generally accepted exposition of the law, which I adopt, is the following passage from the judgment of Carroll J. in McNamara v. An Bord Pleanala [1995] 2 I. L. R. M. 125 at p.130:- "In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are 'substantial'. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial." 8. On an appeal to the Board, the Board is required to determine the application de novo and in so doing it is restricted to considering the proper planning and development of the area having regard, inter alia , to the development plan (section 26(5) of the Act of 1963) 9. However, on an application to this Court challenging the validity of a planning decision, this Court may not address the merits of the decision on the planning application. It is not conducting an appeal from the decision of the Board, but is reviewing the manner in which the decision of the Board was made. The very limited nature of this Court's jurisdiction to interfere with a planning decision is explained in the following passage from the judgment of Finlay C. J. in O'Keeffe v. An Bord Pleanala [1993] 1 I. R. 39 at p. 71:- "Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The Court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters. I am satisfied that in order for the applicant for judicial review to satisfy a Court that the decision making authority has acted irrationally and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision." SUBSTANTIAL GROUNDS? 10. In this case, the Applicant was not legally represented before the Court. Because of that, I have set out the very well established principles of law applicable to this application in the hope that she and the members of the Club will understand the basis of the decision. It is only fair to record that both the Board and the Developer unreservedly acknowledged the bona fides of the Applicant and the Club. 11. In relation to the specific grounds advanced by the Applicant, my observations are as follows:- (a) It is clear that there was evidence before the Board that the development site at Mount St. Joseph's is and has been private property. Neither the Board nor this Court has any jurisdiction to require, either directly or indirectly, that privately owned land be dedicated to a public or community purpose unconnected with the development under consideration. The first ground is wholly unsustainable. (b) The existence or otherwise of a private contractual arrangement between the Developer and the Club, as alleged, is not a matter which can be canvassed on an application for judicial review. It is a matter of private law and I understand that civil proceedings have been initiated by the Applicant against the Developer in relation to this aspect of the matter. As a ground for seeking leave, it is wholly unsustainable. (c) On the basis of the evidence before me, I must conclude that, applying the principles which I must apply on the basis of the decision of the Supreme Court in the O'Keeffe case, it is not the case that there was no relevant material before it which would support the Board's determination that the proposed development would not seriously injure the amenities of the area or of property in the vicinity and would be in accordance with proper planning and development of the area, whether in relation to density, scale or otherwise. ORDER 12. Accordingly, there being no arguable ground, let alone a substantial ground, for challenging the Board's decision, there will be an Order refusing leave and dismissing the application. © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII