2
May 2000
LAFFOY
J
BACKGROUND
On
the 23 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whose appeal was withdrawn before the Board gave its decision.
On
the 13 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."
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.
In
the course of the appeal process, the Board's inspector, B.S. Cranwell (the
Inspector), submitted a report dated the 6 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 arid 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.
On
the 19 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
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 L20,000 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
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 ILRM 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, Jam
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."
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)
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 CJ
in O'Keeffe v. An Bord Pleanala [1993] 1 IR 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
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.
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
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.
