High Court of Ireland Decisions

1. By order of the High Court (McCarthy J.) dated the 23^rd September 2011, the applicant was granted leave to apply by way of judicial review for the following reliefs:-

(a) An order of certiorari quashing the decision made by the respondent on or about the 7^th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been realigned to its satisfaction in accordance with Condition 1 of Planning Permission Register Reference 04/654 (Appeal Reference PL08.218394).

(b) A declaration that the said decision was ultra vires.

(c) A stay on the operation of the said decision dated 7^th September 2011.

Factual Background
3. The notice party is the owner of farmland at Doolahig, Glenbeigh, County Kerry. There is, and has long been, a private road or laneway running through these lands and joining the public road network at Doolahig. The applicant and other members of his family are the owners of a holiday home in Doolahig which is close to the lands owned by the notice party. Access to the public road network for the applicant and others using the holiday home is by means of the same private laneway or road. For the sake of completeness, I should point out that the lane in question, apart from providing access to the public road network for the occupants of the Rowan holiday dwelling and those visiting or having business at the lands of the notice party, is also used by the occupants of another dwelling. The owners of this dwelling are foreign nationals and have not taken any part in the present proceedings.

4. Again for the sake of completeness I should mention that the notice party has erected a structure on his lands which he uses for stabling; one element of the family business of the notice party is the breeding of Kerry bog ponies.

5. The notice party has long been anxious to erect a family home on his lands. His attempts to obtain planning permission to do so have given rise to an extraordinary planning saga in which the matter that now comes before the Court is merely the latest chapter. Given the history to date, one could not be at all confident that this will be the last chapter.

6. It may be necessary to refer, to some limited extent, to aspects of the tangled planning history. However, of immediate relevance to the application before the Court is that on the 17^th January 2007, An Bord Pleanala ("the Board") decided under s. 37 of the Planning and Development Act 2000, to grant planning permission to Mr. Tim Mulvihill to construct a single storey dwelling on his lands at Doolahig, Glenbeigh. The permission was subject to seven conditions of which one- Condition

1(1) - is at the core of the present case. That condition was in these terms:- "Development shall not commence until the public road to the south of the site has been realigned to the satisfaction of the planning authority.

Reason: In the interest of traffic safety."

7. Condition 7 is also of some relevance. It is in these terms:-

"The developer shall pay to the planning authority a financial contribution as a special contribution under section 48(2)(c) of the Planning and Development Act 2000 in respect of the realignment of the public road to the south of the site. The amount of the contribution shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the Board for determination. The contribution shall be paid prior to the commencement of the development or in such phased payments as the planning authority may facilitate and shall be updated at the time of the payment in accordance with changes in the Wholesale Price Index - Building and Construction (Capital Goods) published by the Central Statistics Office".

Reason: It is considered reasonable that the developer should contribute towards the specific exceptional costs which are incurred by the planning authority which are not covered in the Development Contribution Scheme and which will benefit the proposed development."

8. Following the grant of planning permission, the notice party, Mr. Timothy Mulvihill, commenced construction work. He did so following payment of an agreed amount as a special development contribution but prior to any decision of Kerry County Council that realignment of the public road had taken place to its satisfaction. The applicant, Mr. Michael Rowan, commenced proceedings pursuant to s. 160 of the Planning and Development Act 2000, seeking to restrain the carrying out of further works until such time as the conditions of the planning permission, in particular Condition 1 (1),had been complied with. In the course of those proceedings the notice party gave an undertaking not to carry out further works on the site until a declaration was obtained from Kerry County Council that it was satisfied with the way in which the public road to the south of the site had been realigned. In order to understand subsequent events, it is necessary by way of background to be aware of the fact that in the course of the consideration of the matter by the Board, Mr. Mulhivill had submitted a letter from one Georóid O'Connor, owner of land to the south of the proposed site and to the east or upper side of the public roadway (L-4022), in which Mr. O'Connor agreed to cede lands to the notice party. The idea was that control of these lands by the notice party would enable him to address issues that would arise in relation to traffic. This issue was addressed in the course of a report prepared for An Bord Pleanala by its inspector, Ms. Fiona Tynan. She recommended the granting of planning permission, but suggested that it should be subject to the following conditions:-

"Prior to the commencement of development, the applicant shall enter into an agreement with the Planning Authority for the transfer of land outlined in yellow on the site location map, scale 1:25,000, submitted to Kerry County Council on 24^th February 2004, and for the payment in full of cost by the applicant for the necessary road realignment works in accordance with the proposals outlined by the applicant in his submission and by his agent on the applicant's behalf to An Bord Pleanala."

The lands in question have been the subject of much discussion during the proceedings. For convenience, counsel has referred to them as the "yellow lands", as they were outlined in yellow on the site location map, and I will continue this practice.

9. As we have seen the Board accepted the thrust of the inspector's report in that it unanimously decided to grant approval but instead of the condition formulated by the inspector, it opted to impose Condition 1(1).

10. Thereafter, Mr. Mulvihill purchased the lands to the east of the public road and proceeded to carry out work on the acquired lands by clearing vegetation and reducing the level of the lands through excavation.

11. By letter from his solicitor dated 6^th April 2011, the notice party called on the Council to approve what was described as the road realignment he had carried out or alternatively, if the Council was of the view that the road realignment was unacceptable, to state why that was so and to indicate what additional measures were required to satisfy the Council.

12. Kerry County Council responded to this letter by saying that it required the "yellow lands" to be transferred into its ownership, so as to allow it to carry out road improvements. The required undertakings in relation to the transfer of ownership were forthcoming and on foot of these in August 2011, the Council carried out works on the lands in question. The works involved the removal of vegetation and earth to a depth of 100 millimetres below the edge of the roadway or carriageway level, backfilling the area with crushed stones and erecting 70 metres of post and chain link fencing. In the course of the affidavit sworn by Mr. Charlie O'Sullivan, Director of Services Roads, Transport and Safety, of Kerry County Council, Mr. O'Sullivan explained that the Council's works widened the road and the chain and post link fencing provided a new edge to the road. In essence, the effect of the work carried out was to create a flat open surface to the east of the road carriageway over which vehicles actually pass, which has the appearance of a lay-by. Once these works were completed, the Council confirmed to Mr. Mulvihill, by letter dated the 7^th September 2011, that the public road to the south of the site had been realigned to its satisfaction as the relevant planning authority.

13. The applicant, Mr. Rowan, contends that in reaching that decision the planning authority acted ultra vires Condition 1(1) of the permission of the 17^th January 2007. The arguments advanced are first, that the works carried out at the location do not constitute a realignment of the road. Secondly, it is submitted that, having regard to the fact that the Board had stated that it was imposing Condition 1(1) in the interest of road safety, no reasonable planning authority could be satisfied that the works carried out amounted to a satisfactory realignment of the public road, and that the decision to declare itself satisfied was so inconsistent with the requirements of road safety that it was not one that could have been reached by any reasonable planning authority.

14. The written submissions filed also contend that the decision of Kerry County Council was unlawful and contrary to public policy in circumstances where work was carried out by Mr. Mulhivill without planning permission when such permission was required. This point has not really been pressed in oral argument but to the extent that the issue remains part of the case, I am of the view that this is not a point of substance. Even without having to decide whether Mr. Mulhivill required a specific planning pem1ission, in the particular circumstances, it is abundantly clear that the Council did not express itself satisfied on the basis of work carried out by Mr. Mulvihill. It carried out work itself once their requirements in relation to the transfer of the land had been met, and it was on the basis of this work carried out by Kerry County Council that it, as the planning authority, declared itself satisfied that the road had been realigned.

15. Before considering in detail the arguments that were addressed to these issues, it is convenient to refer briefly to some additional developments. On the 18^th July 2011, the notice party, Mr. Mulvihill was granted leave by Peart J., in separate proceedings, to seek relief by way of a declaration that he had fully complied with Condition 1(1). In August 2011, as we have seen, Kerry County Council carried out certain works to the south of the proposed site and then on the 7^th September 2011 wrote to the notice party, Mr. Mulvihill, informing him of the decision it had arrived at. It did so in these terms:

"I refer to the above planning permission granted by An Bord Pleanala on 18^th January, 2007 to erect a dwelling house served by an effluent treatment tank at Doolahig, Glenbeigh, and specifically to condition no. 1(1).

I now confirm that the public road to the south of the site has been re-aligned to the satisfaction of the Planning Authority."

(a) Was the public road to the south of the site realigned?

(b) If the answer to (a) was in the affirmative, was the realignment of the public road south of the site satisfactory to the planning authority and if that was the case was that a conclusion that was open to the planning authority?

18. In the case of O'Connor v. Dublin Corporation (Unreported, High Court, 3rd October 2000), O'Neill J. expressed the view that the question whether there was compliance with a condition in a planning permission did not involve the "O'Keeffe test". He commented:-

"It necessarily follows from this, that what is required of this compliance procedure is no more that faithful implementation of the decision of An Bord Pleanala. The jurisdiction so invoked on the part of the Respondents is a very limited one and of a ministerial nature. What they have to do is to implement that which has already been decided in essence. Thus, all that they must ascertain is the true or correct meaning of the conditions attached to the planning permission and to confine themselves and the Notice Party to such proposals as are in compliance with those conditions."

19. If it is established that there has been a realignment of the public road to the south of the site, the planning authority must then go on to consider what has occurred and specifically go on to consider whether it is satisfied by the works undertaken. It is agreed, and indeed specifically conceded, by the applicant, Mr. Rowan, that if that stage is reached, then the reference to "satisfaction" in Condition 1(1) confers a discretion on the planning authority.

20. The first issue therefore, is whether there has been compliance with the terms of the planning permission by the realignment of the public road to the south of the site. It will be seen that this itself gives rise to two sub-issues, namely, what is meant by 'realignment' and what is meant by 'public road'? It may be noted that the permission to be interpreted is a so-called Grampian one, taking its name from the case of Grampian Regional Council v. City of Aberdeen D.C [1984] 47 P&C.R. 633, i.e. it is a negative condition in the sense that it stipulates that development shall not commence unless, and until, a particular thing happens.

21. The applicant has put before the Court a number of affidavits from two engineers, Dr. Martin Rogers and Mr. Ger O'Keeffe which assert that there has been no realignment of the public road south of the site. This view is challenged both by the respondent, Kerry County Council, and the notice party, Mr. Tim Mulvihill. The basis for taking issue with the position adopted by the applicant and his experts is succinctly put by Mr. Charlie O'Sullivan of Kerry County Council in his first affidavit when he says that it is the situation that the applicant has conflated in its entirety the concept of 'road' on the one hand and 'roadway or carriage' on the other.

22. Section 2(1) of the Roads Act 1993, offers the following definition of 'public road', 'road', and 'roadway ':

'Public road' means a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority;

'Road' includes:-

(a) Any street, lane, footpath, square, court, alley or passage

(b) Any bridge, viaduct, underpass, subway, tunnel, overpass, overbridge, flyover, carriageway (whether single or multiple), pavement or footway,

(c) Any weighbridge or other facility for the weighing or inspection of vehicles, toll plaza or other facility for the collection of tolls, service area, emergency telephone, first aid post, culvert, arch, gulley, railing, fence, wall, barrier, guardrail, margin, kerb, lay-by, hard shoulder, island, pedestrian refuge, median, central reserve, channelliser, roundabout, gantry, pole, ramp, ballard, pipe, wire, cable, sign, signal or Ughting forming part of the road, and

(d) Any other structure or thing forming part of the road and -


(i) necessary for the safety, convenience or amenity of road users or for the construction, maintenance, operation or management of the road or for the protection of the environment, or

(ii) prescribed by the Minister.

This definition of 'road' has been incorporated into the planning and development sphere by the Planning Act of 2000, section two of which provides that 'road' has the same meaning as in the Roads Act 1993.

23. This definition of 'road' is an extensive one, incorporating some things which would not normally be thought of as forming part of the road, such as a weighbridge. What clearly emerges from the definition however, is that there is a distinction between a 'road' and a 'roadway.' As the 'roadway' is the area over which vehicles pass, it is a constituent part of the wider 'road'.

24. At common law the concept of the public road was also wider than the roadway or carriageway. Keane on Local Government, 2nd Edition, at pg. 84 states:-

"At common law everything between the fences including footpaths, cycle tracks and grass margins constitute the public road, unless there is evidence to the contrary"

26. There is some limited internal evidence within the planning permission itself that the condition imposed was not concerned with a realignment of the existing roadway/carriageway. The reasons and consideration for the actual decision to grant a permission is set out in the body of the decision as follows:-

"Having regard to the "Sustainable Rural Housing Guidelines for Planning Authorities" issued by the Department of the Environment, Heritage and Local Government in April, 2005, the local nature of the housing need, the suitability of the site for a proprietary wastewater treatment system and proposed alterations to the road layout to the south of the site, it is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of the area, would not be prejudicial to public health, would be acceptable in terms of traffic safety and convenience and would be in accordance with the proper planning and sustainable development of the area. (Emphasis added).

28. Confirmation that the planning permission was not concerned solely with the roadway/carriageway but with the broader public road is to be found if one has regard to the planning history of the site. It seems to me that it is reasonable and proper to have regard to the planning history although I fully accept that a planning permission is a public document which is to be interpreted objectively. In that regard the remarks of Henchy J. in the course of his disserting judgment in Readymix (Eire) Limited v. Dublin City Council and the Minister for Local Government (Unreported, Supreme Court, 30^th July 1974) are very clear indeed. There is no doubt that the subjective beliefs, either of the applicant, the planning authority or for that matter anyone else, are not relevant or admissible as aids to interpretation. However, the Supreme Court decisions of Gregory v. Dunlaoghaire Rathdown County Council (Unreported, High Court, Geoghegan J, 16^th July 1996) and Kenny v. Dublin City Council [2009] IESC 19 leaves one in no doubt that a court is not confined to a purely literal interpretation. In that context, it is of interest to note that there had been earlier applications for planning permission for a dwelling in respect of a different site on the same lands. When that application was under consideration by Kerry County Council the applicant, Mr. Mulvihill, made a proposal with regard to the purchase of certain lands- the "yellow lands”. That application to Kerry County Council was successful but the decision was appealed by Mr. Rowan. The report to the Board by its inspector, Mr. Des Johnson, (Ref. PL01-3103) referred to the purchase of lands by the applicant to improve sight lines, the willingness to transfer lands to Kerry County Council and the willingness of the applicant to pay for road-alignment. On that occasion, the Board overturned the decision to grant permission on the basis that the proposed site for the dwelling was an exposed one. However, in the present context it is of interest that the earlier application involved consideration of the acquisition of lands and the opportunity to improve sight lines as a result.

29. On the 24^th February 2004, Mr. Mulvihill made a fresh application for planning permission and again there were objections. On this occasion the application was refused by the planning authority on the grounds that it would constitute disorderly background development and that it would endanger public safety by reason of traffic hazard. The notice party, Mr. Mulvihill, submitted an appeal. This time around the report for the Board was prepared by Mr. Bernard Wyse. In the course of his report he comments:-

"In relation to traffic hazard the proposal to improve sight lines at the junction of the access lane and the public road, involving the acquisition of adjacent lands to provide for a straightening of the public road at the applicant's expense are the same as those put forward under planning reference 3103/01 and found acceptable to the Planning Authority and subsequently to An Bord Pleanala."

"In relation to the access arrangements, the Inspector in PL08.13128 noted that the laneway already serves one dwelling and the previous "Board decision under RefB/5/884100 did not refer to inadequate access arrangements as a reason for the refusal". The inspector elaborates that the "transfer of lands could facilitate a straightening of the public road and improvements of sight lines at this existing entrance which would be acceptable. As the first party has offered to transfer the land, I am satisfied that an appropriate condition could be attached to any permission granted." ... However, I am concerned that this is not as explicitly stated as in the previous application on a letter dated 30^th May 2003 and received by the Council on the 4^th June 2003... If permission is considered, it would be preferable that a copy of this letter be resubmitted to ensure that the applicant can be conditioned to carry out the stated works at his own cost."

30. I refer to this history because it does indicate that throughout the convoluted history of the proposal, the focus has been on what could be achieved by the acquisition of lands to the south of the site and to the east of the roadway/carriageway, the "yellow lands" in the first instance by the notice party and then the transfer of the lands to Kerry County Council

Realignment
31. I have been referred to a number of dictionary definitions as well as to the definitions as set out in the British Standards "Building and civil engineering, Vocabulary". This exercise reached its nadir in the first affidavit sworn by Dr. Martin Rogers which referred to Wikipedia and Wiktionary entries. Sensibly, counsel for the applicant indicated that he was not relying on these passages from the affidavit.

32. Understandably, all sides have referred to the decision of Kearns P. in the case of Hoare and Others v. Limerick City Council [2011] IEHC 27, a case involving a proposed Quality Bus Corridor at Ballinacurra Road, Limerick. The issue that Kearns P. had to consider was whether the proposed development was one that was covered by Article 80 of the Planning and Development Regulations 2001 to 2010 and thus required a public consultation process. That, in turn, required consideration of whether the proposed development involved the construction of a new road or the widening or realignment of an existing road where the length of the new road or the widened or realigned portion of the existing road exceeds 100 metres within an urban area.

33. In Hoare the respondent argued that 'road ' and 'roadway' have separate meanings. In effect the respondent contended that unless there was an encroachment on lands beyond the boundary of the road, as distinct from the roadway, the development was not within the ambit of Article 80 and accordingly, a public consultative process was not necessary.

34. The applicant relied upon the British Standard "Building and civil engineering, Vocabulary" definitions which defined 'horizontal alignment' as "the direction and course of the central line of a road or carriageway in plan" and defined 'vertical alignment' as "the direction and course of the central line of a road or carriageway in profile". The applicant in the present case has also referred to the British Standards.

35. Kearns P. agreed with counsel for the applicant that the project far exceeded anything that could be termed 'maintenance.' He was of the view that the respondent's arguments relied, to an unacceptable degree, upon a strained interpretation of key words and terms relevant to s. 179 of the Planning and Development Act 2000, the section in issue. He found nothing in the exemption either in the Act or Regulations which provided a clear basis for including the major development that was under consideration within the exempted categories. He pointed out that the project involved a reconfiguration of the roadway which would extend at some points into areas where it never ran previously. It involved turning a two-lane roadway into a three-lane roadway and, it seemed to him to involve both vertical and horizontal realignment. He categorised as artificial and irrational the argument that, unless there was an encroachment on lands beyond the boundary of the road, the consultation process was not engaged.

36. The views expressed by Kearns P. are of considerable interest. However, a degree of caution is called for. That is for two reasons; first, Kearns P. was interpreting the phrase "widening or realignment of an existing road" that appeared in a statutory instrument. Secondly, he was dealing with a proposal that left unaltered the outer boundaries of the road, but which effected a significant, even radical, reconfiguration within the boundaries.

37. I am not convinced that the exercise of searching far and wide for dictionary definitions is a particularly useful one. Ultimately, the decision on whether there has been realignment depends on whether the focus is on the 'road' or on the 'roadway'. If the focus is on the narrow 'roadway', it seems to be impossible to conclude that there has been realignment. However, if the focus is on the broader 'road' a different conclusion is reached. If that is the focus, and I am of the view that is where the focus should be, then it seems to me that there has been a significant reconfiguration of the road involving the lowering of the road level and the pushing back of its boundaries. If that is the focus of attention then the conclusion has to be that there has been both horizontal and vertical realignment. In these circumstances the applicant's argument, that there has been no realignment of the public road to the south of site, fails.

Was the decision one open to the Planning Authority?
38. The other leg of the challenge sees the applicant, Mr. Rowan, contend that the decision was ultra vires as no reasonable planning authority could have concluded that sufficient measures had been undertaken to justify the planning authority being satisfied with the situation as required by Condition 1(1). It is said that this is clearly the case if one has regard to the fact that the condition imposed by An Bord Pleanala was stated to have been imposed in the interest of traffic safety.

39. The applicant points to the report of the Road Design Office of Kerry County Council which was before the respondent at the time of the decision. The applicant claims that the report established conclusively that the sight lines from the entrance to the access lane/road were significantly in breach of relevant sight line standards. The report points out that the existing sight distance of the southern direction, if measured from a point 2.4 metres back from the road edge which, it is said, is the appropriate way to take measurements, indicates a sight distance of 15 metres. The report refers to guidelines of the National Roads Authority entitled "Design Manual for Roads and Bridges" (DMRB) and the tables there set out. On the basis that the calculated design speed for the local road in question, L-4022, is 70km/h, this would indicate that the desirable minimum stopping sight distance is 120 metres. Even if one were to apply what is known as the "two steps below desirable minimum" approach, this would still require a sight distance of 70 metres, a distance more than four times, indeed almost five times, the distance available. The alleged inadequacy is said to be clearly established if one has regard to the DMRB guidelines. In fact the applicability of these guidelines is a matter of dispute. The respondent planning authority says that the DMRB guidelines refer to national roads carrying large volumes of traffic and are of little relevance to local roads carrying very low volumes of traffic. In that regard, the respondent points to clauses 1.5 and 1.6 of the guidelines. Those clauses are in these terms:-

"1.5 The DMRB sets a standard of good practice that has been developed principally for trunk roads in the U.K. Similarly, the NRA DMRB sets a standard of good practice intended principally for national roads in Ireland. Both documents may also be applicable in part to other roads with similar characteristics. Where they are used for local road schemes, it is for the local road authority to decide on the extent to which the documents in the manual are appropriate in any particular situation.

1.6 While the requirements given in the manual may be the best guidance available to road authorities, such authorities should ensure that their application to local road schemes does not compromise safety, result in poor value for money, or have an unacceptable impact on the environment. It is recommended that any local authority making use of the manual should establish formal procedures for considering whether it is appropriate to depart from particular requirements..."

40. The threshold to be overcome by the applicant, Mr. Rowan, if he is to succeed is a formidable one. As Finlay C.J. pointed out in O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39, the Court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that:-

(a) It is satisfied that on the facts as found it would have raised different inferences and conclusions, or

(b) It is satisfied that the case against the decision made by the authority was much stronger than the case for it.

41. The exhibits in this case contain photographs taken before the transfer of lands by Mr. Mulvihill and photographs taken after the Council carried out its works. I do not believe that anyone viewing the two sets of photographs could fail to conclude that the works carried out represent a significant improvement. The improvement achieved will benefit all those using the exit, and indeed all using the public roadway who have to pass that junction. It is true that the situation is far from perfect. The new arrangements mean that vehicles approaching from the south will be visible from the exit at a point on the road between 115 and 130 metres away and will be again visible at a distance of approximately 30 metres from the exit. However, the downside is that vehicles travelling on the roadway over the section between 115 metres and 30 metres would be hidden from view. If a vehicle were travelling at 70kph, this would mean that the vehicle would be out of sight for approximately five seconds and re-emerge in view for approximately 1 ½ seconds. As I have indicated this is very far from perfect. However, this is not a case of a planning authority having to decide whether to tolerate the creation of a new dangerous exit; the exit is already there. It is not a question of creating a new hazard, but rather ameliorating one that has already existed. That is not achieved without a price; permitting the erection of a dwelling, which will be the third to be served by the private lane/road, must involve an increase in traffic volume at the junction. Whether the general improvement that will result adequately compensates for this is a matter peculiarly within the competence of the planning authority. Kerry County Council was well aware of the nature of the locality in issue, including being aware that there was no record of any accident at the location and that a traffic survey it conducted, albeit conducted outside the peak tourist season, indicated very low volumes of traffic.

42. It is not necessarily the case that every planning authority faced with this decision would decide it in the same way, but I suspect many would. Certainly, I do not believe that it can be said that the conclusion that Kerry County Council arrived at was one that could not be reached by a reasonable planning authority. On the contrary, it seems to me that the decision arrived at, and it was a difficult decision, was one that was carefully considered by Kerry County Council and the conclusion reached was one that was entirely open to it.

43. In these circumstances the applicant's claim that the decision was unreasonable or irrational fails. Having regard to the view that I have reached that the road at the location in question has been realigned, this means that I must refuse the application and decline to grant the reliefs sought.

APPROVED