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Delgany Residents Association v. Wicklow County Council [1998] IEHC 85 (28th May, 1998)
THE
HIGH COURT
(JUDICIAL
REVIEW)
Record
No. 378 J.R/1997
BETWEEN
THE
DELGANY AREA RESIDENTS ASSOCIATION LIMITED
APPLICANT
AND
THE
COUNTY COUNCIL OF THE COUNTY OF WICKLOW
RESPONDENT
AND
AVMARK
LIMITED
NOTICE
PARTY
Judgment
of Mr. Justice Robert Barr delivered on the 28th day of May, 1998.
1. These
proceedings relate to an application by the Delgany Area Residents Association
Limited for liberty to proceed with an application for judicial review of a
decision made by the respondent local authority in which it purported to grant
planning permission, subject to certain conditions, for the construction of a
substantial housing development by the notice party at Delgany, Co. Wicklow.
The relief sought by the applicant, as set out in the statement to ground the
application for judicial review, is as follows:-
"1. An
order of certiorari quashing the decision of the respondent dated the 25th day
of August, 1997.
2. A
declaration that the respondent is bound by the decision of An Bord Pleanala on
planning application register reference 95/2458 dated the 2nd day of August,
1996 to refuse planning permission for a similar development on the lands.
3. An
order of mandamus directing the respondent to reconsider the aforesaid
application in the light of the decision of An Bord Pleanala dated 2nd August,
1996."
2. The
grounds relied upon by the applicant are:-
1. The
notice party lodged an application for planning permission for 294 houses on
lands at Delgany in the County of Wicklow which application was given register
reference no. 95/2458.
2. The
respondent granted planning permission for the development subject to a number
of conditions and the decision to grant planning permission was appealed to An
Bord Pleanala.
3. An
Bord Pleanala, having considered the application and having convened an oral
hearing, decided to refuse planning permission for the proposed development by
a decision dated the 2nd day of August, 1996.
4. The
reasons for the refusal were that the proposed development constituted a
traffic hazard and would seriously endanger public safety on that account and
that the proposed development was premature pending creation of an adequate
road network serving the village of Delgany and the surrounding area.
5. Within
a period of three months from the decision of An Bord Pleanala the notice party
lodged an application for planning permission for essentially the same
development on essentially the same lands with a similar density and layout to
that which had been previously refused by the Board.
6. The
planning authority decided (decision dated 25th August, 1997) to grant planning
permission for the proposed development, notwithstanding the decision of the
Board some months previously to refuse permission. In the intervening period
none of the reasons for refusal cited by the Board had been materially altered
and the same circumstances applied at the date of the making of the
respondent's decision on 25th August, 1997 as pertained on the date of the
decision of An Bord Pleanala. The decision of the planning authority on
planning application no. 96/5079 is similar in terms to the previous decision
on planning application no. 95/2458 and failed to have proper regard to the
decision of An Bord Pleanala and to the matters which the Board held precluded
the development from proceeding.
17. The
issue relating to the inadequacy of the access road is precisely the same as
that which was before the Board on the previous application for which the Board
had refused planning permission.
8. The
second reason for refusal that the absence of a by-pass for the south of
Delgany village and the generally inadequate road network serving the site has
not changed since the date of the decision of An Bord Pleanala on planning
application no. 95/2458.
9. The
location of the entrance to the site and the density and general layout of the
housing and the substance of the application in all material respects is
identical to that which was previously refused by An Bord Pleanala.
Notwithstanding the similarities in the applications the local authority
refused to have regard to the decision of the Board to refuse planning
permission and ignored that decision insofar as the substance of the issues
raised by the Board and considered unacceptable by them were concerned and
proceeded to grant planning permission for the proposed development in similar
terms to their previous decision.
10 It
was submitted that the local authority in considering an application which was
similar in terms to that already considered by An Bord Pleanala in the absence
of any significant change in circumstances pertaining to the proper planning
and development of the area and/or in the absence of a change in the statutory
development plan are bound by the decision of An Bord Pleanala and cannot
depart from it except where there are extraordinary excusing circumstances.
11. There
has been no change in circumstances in the period between the decision of An
Bord Pleanala on planning application no. 95/2458 and the decision of the
respondent on planning application 96/5079.
12. The
decision of the respondent is ultra vires the decision of An Bord Pleanala on
planning application no. 95/2458.
13. That
the principle of res judicata applies to decisions of planning authorities and
to decisions of An Bord Pleanala on appeal.
14. It
was pleaded that the planning authority is estopped from determining the
application for planning permission on no. 96/5079 other than in accordance
with the decision of An Bord Pleanala dated the 2nd August, 1996.
3. It
was also pleaded that the decision of the planning authority was unreasonable,
but at the hearing counsel for the applicant informed the court that it was not
proposed to rely on that particular point.
4. The
history of the two planning applications made by the notice party to the
respondent and other related matters are set out by Mr. Michael O'Neill on
behalf of the applicant. Mr. O'Neill is a town planner by profession and has
substantial qualifications and experience in that area. He deposed that the
original application for planning permission to the respondent dated 30th May,
1995 was for the construction of 294 houses on lands at Delgany. On 23rd
January, 1996 the respondent notified its decision to grant planning permission
for the development subject to 47 conditions. The applicant residents
association had strenuously opposed the application on a number of grounds, the
most important of which was a contention that there was a totally inadequate
road network serving the site; that there was an inadequate infrastructure for
the overall area surrounding the village of Delgany and the fact that the
respondent's development plan was about to be reviewed and such a large
development would prejudice options within that plan. The applicant appealed
the decision of the respondent to An Bord Pleanala and employed a number of
professional experts to advise and give evidence at the subsequent oral hearing
directed by the Board. The applicant comprises a comparatively small number of
residents in a semi-rural area and the cost of mounting an appeal to An Bord
Pleanala against the granting of planning permission to Avmark in respect of
the development in question was substantial and bore heavily upon the
individual members of the association.
5. The
oral hearing directed by the Board was conducted by an inspector, Mr. James
Carroll, on its behalf and in due course he furnished a detailed report on the
proceedings to the Board. It decided to refuse planning permission for the
proposed development for the following reasons:-
"1. Having
regard to the scale of the proposed development, it is considered that the
development would be premature by reference to -
(a) the
existing deficiency in the road network serving the area of the proposed
development in terms of capacity, with an alignment, which would render that
network unsuitable to carry the increased road traffic likely to result from
the development, and
(b) the
period within which the deficiency involved may reasonably be expected to cease
by way of the proposed by-pass to the south of Delgany village and the proposed
connection northwards by means of a distributor road through the site, the
subject of the planning application.
2. Having
regard to the substandard nature of the regional route R762 serving the site,
it is considered that the traffic likely to be generated by the proposed
development would endanger public safety by reason of traffic hazard."
6. Soon
after the refusal of planning permission for the proposed development,
reference No. 95/2458, the notice party submitted a new application to the
respondent for planning permission in respect of a housing development on the
same site at Delgany which, in Mr. O'Neill's opinion, is essentially a
re-submission of the original application with insignificant modifications
which had been refused by An Bord Pleanala. It is submitted that in the
premises the doctrine of res judicata applies and that the respondent has no
authority at law to entertain Avmark's second application and that its decision
to grant planning permission in respect of it, subject to conditions, is
unlawful and should be quashed.
7. The
case made by Mr. O'Neill has been responded to by Mr. Bernard McHugh who is
also a consultant town planner of long experience. His firm represented the
notice party in relation to the 1995 planning application and appeal and also
in respect of the second planning application by Avmark (reference no.
96/5079). He takes issue with Mr. O'Neill's opinion that there is no
significant difference in planning terms between the two proposals. At
paragraph 5 in his affidavit he lists differences between them as follows:-
"(i) The
area of the site in the first application is 17.4 hectares; that in the second
is 15.7 hectares.
(ii) The
extent of the proposed development is reduced from 301 dwellings...... to 263
dwellings.......
(iii) The
second application, unlike the first, is for a phased development with only 63
houses to be built in the first phase.
(iv) Under
the second application a permission of more than 5 years duration was sought to
facilitate the phased development of the site in tandem with improved and new
road infrastructure in the area.
(v) In
response to a request for further information in the context of the second
application, the notice party herein indicated that if permission were granted,
the attachment of a condition requiring a contribution of £5,000 [per
house] towards the cost of providing road infrastructure would be acceptable to
it."
8. Mr.
McHugh averred that in dealing with the second application the respondent had
addressed the primary planning objections, contained in the reasons for refusal
given by An Bord Pleanala regarding the original application, by the attachment
of specific conditions designed to deal with the legitimate planning concerns
expressed in the decision of the Board. He referred in particular to the
following conditions which were attached to the respondent's decision to grant
planning permission dated 25th August, 1997:-
"A4. No
development within the site shall commence until works to provide sightlines
and a turn right lane at the proposed entrance has been completed.
A5. Only
63 houses may be constructed until works have been commenced on the East-West
Delgany by-pass.......
B1. PRIOR
TO THE COMMENCEMENT OF DEVELOPMENT
Contributions
of:-
(i) £5,000
per house shall be paid by the developer to the Council towards the cost of
providing road infrastructure as shown in the Wicklow County Development Plan,
Part II together with improvements to route R762 beyond the frontage of this
site.....
B2. The
contributions in B1 above shall be paid in the followings stages:-
100
units prior to the commencement of development,
100
units after completion of 63 houses and
balance
after completion of 163 houses."
9. Mr.
McHugh went on to aver as follows:-
"9. I
say and believe that these Conditions demonstrate that the respondent county
council did take account of the Decision of An Bord Pleanala on the first
application in the following way -
(a) The
issue of traffic hazard is specifically addressed in Condition A4 which was
attached 'in the interests of traffic safety'.
(b) Condition
A5 precludes any development of the application site after the first 63 houses
are built until construction of the East-West Delgany by-pass has been
commenced, thus addressing the premature objection with regard to the said road
identified in the Board's first reason for refusal.
(c) Condition
B1 imposes a substantially increased contribution of £5,000 per house
(representing a five-fold increase on the contribution required by the
respondent county council on foot of the said earlier application) to be paid
to the respondent county council towards the cost of providing road
infrastructure, thereby putting in place the funding for remedying the
deficiencies in the road network identified in the Decision of An Bord Pleanala.
10. I
further say that a number of specific planning and development changes have
taken place in the period between 1st August, 1996 (the date of Refusal by An
Bord Pleanala of the first application) and the 25th August, 1997 (the date of
the decision by Wicklow County Council to grant permission on foot of the
second application). The following two changes may be instanced as examples:-
(a) Provision
has been made under two approved developments during the past six months for
the payment to Wicklow County Council of the sum of IR£300,000 in road
improvement levies. This total is half the stated figure of IR£600,000
which Wicklow County Council has confirmed will be required to carry out the
necessary improvements in the R762 between Killincarrig crossroads and Delgany.
This is before the notice party's proposed development is taken into
consideration at all.
(b) The
R762 between Barry's Bridge and Delgany has been re-surfaced and new curbs and
an improved public footpath has been installed. Sightlines are being improved
at the junction between R761 and the R762 at Killincarrig crossroads by the
removal of the existing ditch and the building of a stone wall.
11. I
therefore say and believe that, in adjudicating on the second application, the
respondent county council has had proper regard to the decision of An Bord
Pleanala on the said earlier Application and has acted in accordance with the
principles of proper planning and development in reaching its Decision."
10. The
foregoing case made by Mr. McHugh on behalf of the notice party is supported by
an affidavit sworn by Mr. Desmond O'Brien, acting senior executive engineer in
the respondent's planning department. He set out the attitude of the
respondent to Avmark's second application in the following terms:-
"7. I
say that in considering the planning application under reg. ref. no. 96/5079
the Council had regard to, inter alia, material changes since the decision of
An Bord Pleanala under reg. ref. no. 95/2458 on the 2nd August, 1996, including
the following:-
(i) The
notice party under reg. ref. no. 96/5079 sought permission for a phased
development with the first phase being the construction of 63 houses;
(ii) As
appears from the Council's Notice for Further Information dated 16th January,
1997, the Council introduced a strategy of levying every new development within
the Greystones/Delgany Development Plan at £5,000 per house, based on the
cost of the total amount of road construction required within the town to
service the population that would be generated by the zoning objective of the
County Development Plan.
(iii) As
a result of the decision of An Bord Pleanala under reg. ref. no. 95/2458 dated
2nd August, 1996, a decision was made by the County Engineer to bring forward
the time-scale for construction of the Delgany East-West by-pass. The
time-scale for construction of the Delgany East-West by-pass arose at the oral
hearing prior to the decision of An Bord Pleanala under reg. ref. no. 95/2458
dated 2nd August, 1996 when the inspector was informed by the senior roads
engineer that the East-West by-pass was at that time a long term objective.
Since August 1996, the Council had decided to construct the Delgany East-West
by-pass in the short term.
(iv) All
but one of the land owners to the East of the notice party's site along the
route of the R762 regional road have informed the Council that their land would
be made available for road improvements to R762.
8. I
beg to refer to the Council's decision under reg. ref. no. 96/5079 dated 25th
August, 1997. Condition A2 states as follows:-
'This
permission shall last for eight years.
REASON: To
enable the development to be completed subsequent to the commencement of works
on a new East-West Delgany by-pass.'
11. Condition
A3 states as follows:-
'No
development shall commence until contributions, submissions, agreement required
by Conditions A7, B1, B3, B4, B5, C5, D1, D2, D3, D8, E4, F1, F5 and F8 below
have been submitted to and agreed acceptable in writing by the Planning
Authority.
REASON: In
the interest of proper planning and development and clarification.'
12. Condition
A5 states:-
'Only
63 houses may be constructed until works have been commenced on an East-West
Delgany by-pass.
REASON: In
the interest of proper planning and development and clarification.'
13. Condition
B1 states, inter alia, as follows:-
'PRIOR
TO THE COMMENCEMENT OF DEVELOPMENT
(i) £5,000
per house shall be paid by the Developer to the Council towards the cost of
providing road infrastructure as shown in the Wicklow County Development Plan.
(ii) Together
with improvements to route R762 beyond the front edge of this site.'
9. I
say and believe that these conditions will ensure that the phased development
on foot of this permission does not take place before the East-West Delgany
by-pass route is in place. I say and believe that the effect of Condition A5
is that any incremental increase in traffic will not significantly add to the
current traffic loads in the areas of Delgany village and the road through
Killincarrig will not be significantly affected by this development.
10. I
say that the levy referred to at Condition B1 is sufficient to provide the
necessary funds for work including work being carried out by the Council on
route R762 which will overcome existing traffic hazards and provide proper
footpaths notwithstanding that Condition A5 will have the effect of preventing
a significant increase in traffic to create a traffic hazard on route R762.
11. I
say that the duration of the planning permission was extended to eight years
(Condition A2) to allow for development on foot of permission reg. ref. no.
96/5079 subsequent to the commencement of works by the Council on a new
east-west Delgany by-pass.
12. In
my opinion, development on foot of the Council's decision dated 25th August,
1997 under reg. ref. no. 96/5079 is consistent with the proper planning and
development of the area and in accordance with the County Development Plan. I
say that having regard to the conditions attached to the Council's decision to
grant permission under reg. ref. no. 96/5079, development can be carried out
without the negative impacts identified by An Bord Pleanala in their reasons
for refusal under reg. ref. no. 95/2458.
13. I
say that contrary to the averments contained in the grounding affidavit of
Michael O'Neill, there are material differences between the planning
applications under reg. ref. nos. 95/2458 and 96/5079. In my opinion, the
Council has dealt with the notice party's application under reg. ref. no.
96/5079 in a materially different manner having regard, inter alia, to the
number of dwellings involved; the phased development proposed (as referred to
at Condition A5 of the Council's decision dated 25th August, 1997): The
Council's current strategy of levying development within the Delgany traffic
envelope at £5,000 per house (Condition B1) and the extended duration of
the life of the permission (Condition A2); the decision by the Council to bring
forward the time scale for construction of the Delgany east-west by-pass and
the availability of land to the east of the notice party's site along the route
of the R762 regional road for road improvements to R762.
14. I
say that in arriving at its decision on the 25th August, 1997, the Council had
regard to all the relevant material at that time before it including the
reasons for refusal contained in the decision of An Bord Pleanala under reg.
ref. no. 95/2458; and the legitimate planning concerns expressed in all
submissions to the Council."
15. Mr.
O'Brien also referred to and exhibited correspondence regarding the applicant's
appeal to An Bord Pleanala about the granting of planning permission by the
respondent to the notice party in respect of its application No. 96/5079.
16. In
its statement of opposition, the respondent has pleaded, inter alia, that the
principle of res judicata does not apply to its decision to grant planning
permission to the notice party in respect of its application No. 96/5079 and
that it is not estopped from determining that application by the decision of An
Bord Pleanala in relation to permission granted by the respondent on foot of
the notice party's earlier application No. 95/2458. The local authority
contends that there has been material change of circumstances since the
decision of An Bord Pleanala on the original application. Further affidavits
have been sworn by Mr. O'Neill and Mr. O'Brien in which the controversy between
them regarding the two applications for planning permission made by Avmark
Limited have been carried further. However, the issue as to the extent of
similarity between the applications remains unresolved.
17. The
net issue for determination is whether the applicant has established that there
is no real distinction between the first and second applications for planning
permission made by the notice party to the respondent; that such differences
which exist between them are insignificant and do not open the way for a
departure by the respondent from the decision of An Bord Pleanala refusing
planning permission for the first proposed development and, in particular, that
they do not materially affect the reasons specified by the Board for its
refusal of permission. If the applicant can establish such a connection
between the notice party's first and second applications for planning
permission, then it would follow that the doctrine of res judicata applies and,
in the absence of changed circumstances, the respondent would be obliged in law
to refuse permission for the second development, being bound by the decision of
An Bord Pleanala in refusing permission on appeal from its original decision.
18. In
order to succeed in its application at this stage of the proceedings for
liberty to proceed against the respondent by way of judicial review of its
order granting planning permission to Avmark on application No. 96/5079, the
applicant must establish that there are substantial grounds for contending that
it is entitled to the reliefs which it claims against the respondent - see
judgment of the Supreme Court in
Scott
-v- An Bord Pleanala
,
[1995] 1 I.L.R.M. 424 and of Carroll J. in
McNamara
-v- An Bord Pleanala & Kildare County Council & Ors.
,
[1995] 2 I.L.R.M. 125. The real issue now before the court is not whether the
doctrine of res judicata applies but whether there is evidence to establish
that in fact there is no real distinction between the two Avmark applications
for planning permission and the extraneous factors relating thereto regarding
road development in the area. Two points emerge clearly from the affidavits of
Mr. O'Neill, Mr. McHugh and Mr. O'Brien. First, that there is substantial
controversy between the parties on the foregoing issue and, secondly, that the
controversy relates to factual planning matters, the assessment of which is
outside the competence and authority of the court and is specifically within
the ambit of An Bord Pleanala. I am satisfied that in the premises the only
course open to the applicant was to appeal to An Bord Pleanala the second
planning permission granted by the respondent. The Board is in the best
possible position to assess whether or not the second Avmark application and
the terms imposed by the respondent in respect of it are so closely related to
the first application and its conditions as to be in practical terms on all
fours with it. If the Board comes to that conclusion then it will allow the
appeal and overrule the permission granted by the respondent on the second
application made by the notice party. It also seems to me that if the
applicant's case as to the close connection in practical terms between the two
applications is well founded, it is unlikely that there will be any need for
the Board to direct another full scale public enquiry by way of appeal hearing.
It is probable that written submissions to the Board would be sufficient to
enable it to decide on the extent of similarity between the respective planning
permissions and whether or not there is any real distinction between the
permissions purported to have been granted by the respondent on each of them.
19. For
the foregoing reasons, this application is refused.
© 1998 Irish High Court
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