Urban Entertainment Ltd v Monteco Holdings Ltd [2019] IEHC 620 (09 August 2019)

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IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS, 2000 AND IN THE

Judgment of Mr. Justice Meenan delivered on the 9th day of August, 2019

1. In these proceedings the applicant seeks an order pursuant to s. 160 of the Planning and

Development Act 2000 (as amended) (“the Act of 2000”). The applicant holds a 25-year

lease on a property situated at 5 B/6 Upper Ormond Quay and 6 Little Strand Street,

Dublin 7 at Upper Ormond Quay, Dublin 7 and has been operating a restaurant called

2. The respondent is the owner of property situated at 7 – 13 Upper Ormond Quay, Dublin 7

which abuts onto and is immediately adjacent to the applicant’s property. In March, 2016

the respondent applied for planning permission to demolish the existing hotel at 7 – 11

Upper Ormond Quay and the construction of a new part five storey and part four storey

hotel on the site. Planning permission was granted, following an appeal, by An Bord

Pleanála. This planning permission was subject to a number of conditions, the alleged

3. The respondent commenced demolition works on the site on or about 5th June, 2018.

This involved use of heavy machinery to demolish the existing hotel. The applicant claims

that the noise, dust and vibrations arising from this work were at such a level that it was

forced to cease trading. These events are the subject of other proceedings in which the

4. The owner and occupier of no. 6 Ormond Quay Upper, Dublin 7, Mr. Michael Smith, which

adjoins the development site, also sought orders under s. 160 of the Act of 2000 seeking

to, inter alia, restrain the development works by reason of alleged breaches of the

conditions attaching to the planning permission. These proceedings were heard at the

same time as the applicant’s proceedings and, in order to make best use of court time,

the applicant relied upon certain submissions made in the Smith application. However,

since the hearing of both applications, the Smith application (together with an action for

damages in nuisance) has been settled and thus are not the subject of this judgment. In

considering the issues involved in this application the court will consider various

submissions made in the Smith application upon which the applicant in these proceedings

5. At the outset two matters should be clearly stated. Firstly, the Court has been informed,

through affidavits of damage done by the construction works in the course of the

development to no. 6 Ormond Quay Upper being damage to the party wall and an ingress

of water. Further, in an affidavit filed on behalf of the applicant Mr. Brian Deery, director

of the applicant company, he set out in detail the extent of the noise, dust and vibrations

which led to the closure of his business. In reply numerous affidavits were filed on behalf

of the respondent contesting these matters. It is well established that, in the absence of

cross-examination, a court cannot resolve such disputes (see Hardiman J. in Boliden Tara

Mines v. Cosgrove and Others [2010] IESC 62). Secondly, it does not follow that where

there is a complaint of an act of nuisance that there is a corresponding breach of a

condition of the planning permission. In these s. 160 proceedings the Court is solely

concerned with two issues. Firstly, was there a breach of the conditions that attached to

the respondent’s planning permission and, secondly, if there was such a breach is the

applicant entitled to the orders which it seeks under s. 160 of the Act of 2000?

6. Work on the development at the site ceased in September, 2018.

7. In its notice of motion, the applicant seeks the following reliefs:-

1. An order prohibiting the respondent, its servants or agents from carrying out a

development at 7 – 13 Ormond Quay Upper, Dublin 7 consisting of the demolishing

of the existing hotel and the construction of a new part five storey and part 4

storey to other than in accordance with planning permission register reference

2. An order prohibiting any further development unless and until condition 1, condition

4, condition 6, condition 11 and condition 12 of the said planning permission have

3. An order requiring the respondent to prepare a construction management plan and

traffic management plan in accordance with its obligations under the said planning

permission and the plan approved in writing by Dublin City Council prior to any

further works being carried out and to comply with the conditions therein.

4. An order requiring the development to be carried out in accordance with the plans

and particulars lodged and in particular in a manner that does not impact on the

applicant by the emission of dust, noise, hazardous materials and disturbance such

as to render continued operation of the adjoining restaurant use impossible.

8. At the hearing of the application counsel on behalf of the applicant, Mr. Peter Bland S.C.,

did not rely on any alleged breach of condition 12. Further, as had been stated before,

the plaintiff has initiated other proceedings against the respondent claiming damages for

Where an unauthorised development has been, is being or is likely to be

carried out or continued, the High Court or the Circuit Court may, on the application

of a planning authority or any other person, whether or not the person has an

interest in the land, by order require any person to do or not to do, or to cease to

do, as the case may be, anything that the Court considers necessary and specifies

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to

(i) in the case of a permission granted under this Act, the permission

10. Section 160 of the Act of 2000 (and the earlier s. 27 of the Local Government (Planning

and Development) Act 1976) have been considered in numerous decisions of the Superior

Courts. These authorities clearly set out the nature and extent of the discretion which a

court has in either granting or refusing relief under s. 160 where a breach of condition has

11. In reviewing the various authorities, the starting point is the judgment of Henchy J. in

“Section 27, sub-s. 2 is one of the most important and least understood or used

provisions of the planning code. The section expressly recognized for the first time

that a member of the public (as well as the planning authority), regardless of his

not satisfying any of the qualifications based on property or propinquity or the like

(which are usually required to justify bringing proceedings), once he discovers that

a permitted developer is not complying with, or has not complied with, the

conditions of the relevant development permission, may apply in the High Court for

an order compelling the developer to do or not to do, or to cease to do, as the case

may be, anything which the Court considers necessary to ensure that the

development is carried out in conformity with the permission and specifies in the

The jurisdiction thus vested in the High Court is extremely wide. It recognises the

fact, which has been stressed in other decisions of this Court, that in all planning

matters there are three parties: the developer, the planning authority (or, in the

case of an appeal, the Planning Board) and members of the public.”

12. This application concerns an alleged failure on the part of the respondent to comply with

certain conditions attaching to the planning permission. Thus, the Court will have to

consider the wording of these conditions. In doing so I refer the following passage from

McCarthy J. in the Supreme Court decision In re X.J.S. Investments Ltd [1986] I.R. 750

“Certain principles may be stated in respect of the true construction of planning

1. (a) To state the obvious, they are not Acts of the Oireachtas or subordinate

legislation emanating from skilled draftsmen and inviting the accepted canons

2. (b) They are to be construed in their ordinary meaning as it would be

understood by members of the public, without legal training as well as by

developers and their agents, unless such documents, read as a whole,

13. Even where a court is satisfied that there has been a breach of a condition attaching to

planning permission the court has a discretion as to whether or not to grant an order

under s. 160. In exercising its discretion, a number of factors have to be considered. I

refer to the judgment of McKechnie J. in the Supreme Court decision in County Council of

90. What, then, are the factors which play into the exercise of the Court’s

From a consideration of the case law, one can readily identify, inter alia, the

(ii) The conduct of the infringer: his attitude to planning control and his

Acting in good faith, whilst important, will not necessarily excuse

(iii) The reason for the infringement: this may range from general mistake,

(iv) The attitude of planning authority: whilst important, this factor will not

(v) The public interest in upholding the integrity of the planning and

The importance of the underlying structure/activity, for example,

(vii) The conduct and, if appropriate, personal circumstances of the

(viii) The issue of delay, even within the statutory period, and of

(x) The consequences of any such order, including the hardship and

14. It will become clear, when I come to consider the alleged breaches of condition, that a

number of these factors are present in the circumstances of this application.

15. There are a number of authorities which illustrate the point that, though there may be an

established breach of a condition attaching to planning permission, this does not

inevitably lead to an order being made under s. 160. In Sweetman v. Shell E. & P. Ireland

Ltd [2007] 3 IR 13 the applicant maintained that the respondent was in breach of a

condition of the planning permission whereby it was required to provide security to Mayo

County Council for the cost of ensuring satisfactory reinstatement of the site involved.

The respondent proposed furnishing a guarantee to the County Council to cover the cost

but the applicant argued that such a guarantee was not “security” as provided for in the

said condition. In the High Court Smyth J. refused to make an order under s. 160 stating

“I find as a fact and as a matter of law that there has been substantial compliance

with condition 37. Undoubtedly there remains outstanding, … certain formalities to

be fulfilled. In the course of the submissions no authority was advanced to the

court substantiating the right of a third party to challenge an agreement actually

made between a planning authority and a “developer” and to invoke the discretion

16. On appeal (Sweetman v. Shell E&P Ireland Limited [2016] IESC 2) Dunne J. in the

“I am satisfied having regard to decisions such as Mountbrook Homes Limited v.

Oldcourt Developments Limited and Conroy v. Craddock 2007 IEHC 336 that

notwithstanding the fact that a pre-commencement condition requiring agreement

between the developer and the planning authority on a particular issue has not

been concluded but where there is subsequent agreement, a court will not generally

17. In Conroy v. Craddock & Ors [2007] IEHC 336 it was alleged that the respondent was in

“Before commencement of development the applicant shall submit, for the written

consent of the planning authority, a revised site layout plan providing for a

There was no dispute that condition 5 was not complied with. Further, as the

development had commenced it was established that the condition could never be

“It goes without saying that there has been a breach of condition 5 in the sense

that no plans were submitted before the commencement of the development. It is

clear that there can be belated compliance with a pre-commencement condition as

was acknowledged in the case of Mountbrook Homes Limited v. Old Court

Developments Limited High Court, unreported April 22nd, 2005. In this case it is

not contested that revised floor level plans were submitted for approval of the

Council and, as pointed out previously by letter dated 1st March, 2006, the same

were approved. I accept that those plans show not a reduction but an increase in

“In consideration of the issue as to whether there has been a prima facie breach of

condition 5, I am satisfied that it is necessary to look at the purpose of condition 5.

Its purpose was to achieve the reduction of the visual impact of the units on the M9

motorway in the interests of visual amenity. I do not think that this condition can

be considered without reference to conditions 6 and 7. The approach of the Council

was also to consider condition 5 in conjunction with conditions 6 and 7 as set out in

the letter of the 1st March, 2006. The Council is satisfied as to the effect of the

finished floor levels having regard to the visual impact on the motorway. In all the

circumstances, I have come to the conclusion that there has been substantial

compliance with condition 5 of the planning permission. Therefore, I would answer

19. In considering the various authorities, I am grateful for the helpful analysis by Barrett J.

in St. Margaret’s Concerned Residents Group & ors v. Dublin Airport Authority Plc

[2017] IEHC 694. In that case the Court refused an order under s. 160 notwithstanding that

there had been a breach of one of the conditions attaching the planning permission.

20. In submissions to the Court the applicant put considerable emphasis on the recent

decision of the High Court in Luxor Investments Ltd v. Wave Point Ltd [2018] IEHC 775.

The applicant and the respondent were owners of two separate plots of land situate at

Great Ship Street, Dublin 2. The respondent’s plot of land was bounded on three sides by

the Applicant’s land. Both the applicant and the respondent intended to develop their

respective sites, the applicant’s proposed development being far more extensive than that

of the Respondent. A condition of the planning permission required that a construction

management plan be submitted to, and agreed in writing, with the planning authority

prior to the commencement of the development. The plan was required to provide details

of intended construction practice for the development, including noise management

measures and off-site disposal of construction/demolition waste. Burns J. did not accept

the submission of the respondent that, though it had not submitted the required

construction management plan, it was, nonetheless, not in breach of the condition. In

making this submission the respondent relied upon the absence of a commencement

notice, a practice in the industry that developments of the type involved were conducted

in a phased manner and that, from a practical prospective, a construction management

plan would not be concluded until certain archaeological investigations had been carried

out. Burns J. rejected these submissions and found the work carried out by the

respondent was an unauthorised development as this term of the planning permission had

not been complied with. The Court made an order that a construction management plan

be filed by the respondent by a particular date so as to ensure that the development was

carried out in conformity with the planning permission. I believe that it is important to

note in this particular case exactly what relief the applicant was seeking. Burns J. stated

“The relief sought by the Applicant at the hearing of the motion, no longer was that

the works be injuncted pursuant to s. 160 of the Act of 2000, but rather that an

order be made directing the Respondent to file a construction management plan as

21. In the action before this Court the applicant is seeking an order directing the respondent

not to recommence or carry out any further development pursuant to the planning

22. It is now necessary to examine the various conditions which the applicant contends the

23. Following an appeal, An Bord Pleanála granted to the respondent planning permission for

the demolition of the existing hotel, construction of a new part five storey and part four

storey hotel and all associated works at 7-13 Ormond Quay Upper, Dublin 7. This

permission was subject to a number of conditions. Condition 1 provided:-

“1. The development shall be carried out and completed in accordance with the plans

and particulars lodged with the application, as amended by the further plans and

particulars submitted on the 15th day of August, 2016 and by the further plans and

particulars received by An Bord Pleanála on 7th day of November, 2016 and the

21st day of February, 2017, except as may otherwise be required in order to

comply with the following conditions. Where such conditions require details to be

agreed with the planning authority, the developer shall agree such details in writing

with the planning authority prior to commencement of development and the

development shall be carried out and completed in accordance with the agreed

24. It can be seen that condition 1 is expressed in general terms. It requires that the

development be carried out and completed in accordance with the plans and particulars

lodged and the conditions attaching to the planning permission. These conditions require

that where details are to be agreed with the planning authority, such shall be agreed in

writing prior to the commencement of the development. It seems to me that the applicant

is alleging breach of condition 1 in the context of the alleged breach of conditions 4, 6,

and 11. Therefore, in order to reach a conclusion as to whether or not condition 1 has

been breached, the Court has to examine the alleged breaches of these other conditions.

At this stage it should be noted that the planning authority, Dublin City Council, has not

taken any steps as might indicate that it believes that there has been a breach of the

conditions attaching to the planning permission. This is a factor, though not necessarily

decisive, which was referred to by McKechnie J. in County Council of Meath v. Murray (see

“ all works to nos. 12 and 13 Ormond Quay Upper shall be carried out in

accordance with the best conservation practice as detailed in the architectural

heritage protection guidelines for planning authorities published by the Department

of the Environment, Heritage and Local Government in December, 2004. In that

regard, prior to the commencement of development the applicant shall submit to,

(i) Detailed design proposals of the glazed link to the rear of nos. 12 and 13

(ii) Details of the proposed landscaping and alterations to the rear of nos. 12 and

(iii) Detailed design proposals of the interface between existing structures to be

(iv) Detailed design proposals for the outline of the former no. 8 and 9 Ormond

Quay Upper at ground floor level referencing the sites connection with James

(v) A detailed survey/preservation by record of all structures to be demolished to

the rear of nos. 12 and 13 Ormond Quay Upper, a copy shall be made

(vi) An inventory of all fixtures, fittings and finishes in the structures to be

demolished to the rear of nos. 12 and 13 Ormond Quay Upper and proposals

(vii) A schedule of works to nos. 12 and 13 Ormond Quay Upper which shall

address, inter alia, the following: a schedule of remedial works to stabilise

structures; a schedule of works to the front and rear elevations; a schedule

of structural works which shall avoid adverse impact and loss of fabric where

possible; a schedule of internal finishes including all joinery, plain and

decorative plasterwork, fireplaces and staircases; a schedule and layout of all

(viii) Details of signage, lighting and materials to be used on the facades of nos.

12 and 13 Ormond Quay Upper, including works proposed to the ground floor

The works to these buildings shall be carried out under the supervision and

guidance of personnel suitably qualified in conservation during the progress of the

Reason: in the interests of architectural heritage protection.”

26. In considering whether the terms of condition 4 have been complied with, I refer to the

“conservation officer’s report – compliance review” written by Ms. Mary McDonald who

was acting conservation officer of Dublin City Council at the time. This report establishes

that as of 11th May, 2018 condition 4 (i) (vii) and (viii) had not been complied with. A

revised plan dealing with (i) the glazed link, was submitted on 11th July, 2018. The

conservations officer’s concern with (vii) was that, though a schedule of works had been

submitted for 12 and 13 Ormond Quay Upper, this schedule was not sufficiently clear in a

number of respects. The respondent made a further submission and a further report from

the conservation officer confirmed that (vii) had now been complied with. In respect of

(viii), the conservation officer acknowledged that the architects instructed by the

respondent had indicated the scope of works on the ground floor facade in their schedule,

but no lighting or signage details were provided. This appears to be still the case.

27. Applying the authorities which I have referred to above, it seems that the only

outstanding matters in respect of condition 4 (i) to (viii) are lighting and signage details. I

am satisfied that there has been substantial compliance with this condition. The

outstanding issues can and will be addressed at a later stage. Insofar as this is a breach

of condition 4 (viii), I would characterise such breach as being minor and not of an order

as would justify the court restraining the recommencement of works.

28. Condition 4 also refers to the works being carried out “under the supervision and

guidance of personnel suitably qualified in conservation …”. The respondent has retained

a specialised conservation architect to ensure all works at the site are carried out in

accordance with best conservation practice. It was stated that Mr. James Slattery of David

Slattery Conservation Architects has been instructed for this purpose. In construing this

aspect of condition 4, I refer to the passage cited from the judgment of McCarthy J. In re

X.J.S. Investments Ltd that the wording of the condition be construed in its ordinary

meaning and should not be construed as if it was an Act of the Oireachtas or subordinate

legislation. Further, as per Dunne J. in Conroy v. Craddock the Court may consider the

stated reason for condition 4, being “in the interests of architectural heritage protection” I

am satisfied that there has been substantial compliance with this.

“6. Detailed proposals for the protection of structures and property adjacent to the

application site shall be submitted to, and agreed in writing with, the planning

authority and shall include inter alia proposals regarding pre and post construction

condition surveys and structural surveys; detailed survey works, and

comprehensive monitoring proposals as referred to in the letter from MMOS

Consulting Civil and Structural Engineers, dated 14th day of February, 2017 and

Reason: in the interests of clarity, architectural heritage protection, and the proper

The wording of this condition refers to “proposals” for the protection of structures and

“proposals” for pre and post construction condition surveys and structural surveys. It is

also stated that these “proposals” are to be “agreed in writing with the planning

authority”. To make the obvious point, it does not provide that these “proposals” have to

be agreed with the applicant. Therefore, in order to reach a conclusion as to whether or

not this condition has been complied with it is necessary to look, in some detail, at the

correspondence and emails that passed between the respondent and Dublin City Council,

the Planning Authority. I will commence with an email dated 14th May, 2018 from KPH

Construction, on behalf of the respondent to Dublin City Council seeking an update “on

the status of compliance with condition 6”. On 15th May, 2018 the respondent was

furnished with a copy of the conservation officer’s report, 11th May, 2018, indicating non-

compliance with condition 6. The respondent gave its response enclosing a report from

MMOS Consulting Civil and Structural Engineers concerning the outstanding issues on

condition 6. Also enclosed was a report from Niall Fitzsimons Consulting Engineer and a

“method statement” from Doherty Finnegan Kelly, also engineers. The response from

Dublin City Council was set out in an email dated 31st May, 2018 which stated, inter alia,

“I am satisfied for the contractor to proceed with these works in principle, on the

understanding that the works shall be carried out to cause minimum interference to

the retained building and facades structure and/or fabric …”.

30. Further information was provided by James Slattery, Architect, on behalf of the

respondent by email on 1st June, 2018. In response by an email of the same date Dublin

“I am satisfied that this addresses the items we discussed today, and it is

permissible for the contractor to proceed on the basis in relation to condition 6 of

the extant planning permission, I understand that revised documents will be

resubmitted to reflect the particular items noted below so that a formal compliance

31. In response to the documentation furnished by the respondent on 22nd May, 2018 and

1st June, 2018, by letter dated 20th June, 2018 Dublin City Council stated that the details

submitted were satisfactory and “are in partial compliance with condition no. 6”. Revised

drawings and other documentation including a revised “method statement” and “method

statement and risk assessment” were submitted. By letter dated 23rd July, 2018 Dublin

City Council informed the respondent that the details submitted on 22nd June, 2018 “are

32. In light of the correspondence and emails which I have referred to, I conclude that the

respondent is in compliance with condition 6. It is clear that the detailed proposals

required by condition 6 have been agreed in writing with the planning authority.

33. Reliance was placed on the absence of surveys referred to in condition 6. Whereas

condition surveys can be carried out by photographs, structural surveys require a more

extensive investigation. The pre-structural survey required the consent of Mr. Smith. The

respondent sought this consent in the course of extensive correspondence which was

opened to the court. Whereas the respondent was solely concerned with the provisions of

condition 6 it is clear that the Mr. Smith took a different view in that he was dealing with

the matter in the context of being a neighbour to a major construction development

project and damage to his property that had already occurred. In terms of the s. 160

application I am satisfied that the respondent took what steps it could and carry out the

preconstruction structural survey. The respondent, through its counsel Mr. Michael

O’Connell S.C., informed the court that a post construction condition and structural

survey would be carried out. Returning, again, to the judgment of McKechnie J. in County

Council of Meath v. Murray, I am satisfied that the respondent fully engaged with the

planning authority and acted in good faith. The applicants sought to rely on Luxor

Investments Ltd v. Wave Point Ltd. It is clear the facts of this application are entirely

different in that the respondent has, at all stages, fully engaged with the planning

authority. Further, as I have already referred to, unlike this application, the Court in

Luxor Investments Ltd was not being asked to halt the development but rather to direct

the respondent to file a construction management plan. Clearly where an order of court is

being sought to halt development works rather than to direct the filing of a construction

management plan, different criteria would apply to the use of the court’s discretion.

34. In September, 2018 the party wall of no. 6 was damaged. Mr. Smith maintains that this

was as a result of the use of a mulcher to break up concrete and vibrations. The

respondent denies that there were vibrations and, on the use of the mulcher, points to

the method statement furnished by the respondent in June, 2018 which refers to an

excavator being used to “sheer and pulverise” concrete and masonry structures.

35. By reason of the foregoing I find that the respondent is in substantial compliance with

condition 6. Further, the Court notes the undertaking given by counsel for the respondent

“11. The construction of the development shall be managed in accordance with a

construction management plan and a construction traffic management plan, which

shall be submitted to, and agreed in writing with, the planning authority prior to

commencement of development. These plans shall provide details of intended

construction practice for the development, including hours of working, noise

management measures, off-site disposal of construction/demolition waste and the

Reason: in the interests of public safety, amenity and traffic safety”.

37. The applicant referred to the requirements imposed on the respondent by this condition.

Again, it is necessary to look at the communications and emails that passed between the

38. On 30th March, 2018 the respondent submitted to Dublin City Council a noise, vibration

and dust monitoring and management plan drawn up by Byrne Environmental Consulting

Limited. On 4th April, 2018 the respondent submitted a construction management plan

and a waste management plan. On 1st May, 2018 Dublin City Council, by letter, informed

the respondent that the details submitted on 30th March, 2018 were satisfactory and in

compliance with condition 11. Attached to this letter were various departmental reports.

These reports were from the Environmental Health Officer, Road Traffic and Planning

Division, Environment and Transportation Department, and Waste Management Services.

All these reports confirmed compliance with condition 11. Subsequently, a revised noise

vibration and dust monitoring and management plan was submitted dated 11th June,

2018. On 26th June and 11th July, 2018 officials of Dublin City Council attended at the

development site. A short report concerning the inspection on 11th July concluded “all

39. In light of the foregoing I cannot identify any breach of condition 11.

40. Counsel for the applicant, Mr. Peter Bland S.C., submitted that where conditions provided

for an agreement in writing such required a degree of formality. He submitted that the

appropriate mechanism for recording such an agreement was by what was formally called

a manager’s order, now the Chief Executive’s order. Reliance was placed on s. 151 of the

The manager shall in carrying out the executive functions for each local

authority for which he or she is manager act by a written order signed and dated by

him or her in respect of the functions to which this section applies.

“A decision on an application under any enactment where the grant of a permission,

approval, permit, consent, certificate, licence or other form of statutory

42. I do not accept this submission. No authority was opened to the Court to the effect that a

written order of a manager or Chief Executive Officer was required in order to comply with

a planning permission condition that requires an agreement in writing. Compliance with a

planning permission condition does not require such formality. Indeed, if such was

necessary, one would have expected it to have featured in the judgment of McKechnie J.

in County Council v. Murray where he set out “factors to be considered” in dealing with a

court’s discretion on an application under s. 160. Further, I am satisfied that an

agreement in writing under a condition attaching to a planning permission does not fall

43. By reason of the foregoing, I am satisfied that the applicant has failed to identify any

breach of the conditions attaching to the planning permission as would permit the Court

to make the orders sought under s. 160 of the Act of 2000. I therefore dismiss the

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