Dunne & Anor v An Bord Pleanala & Anor

Factual and Procedural Background

This opinion concerns two judicial review applications relating to planning permissions granted by An Bord Pleanla for developments on the same plot of land at Shrewsbury Road, The City. The applicants sought orders of certiorari to quash decisions dated 11th February 2004 and 8th September 2005, each granting planning permission for the demolition of existing buildings on the site of the former Chester Beatty Library and the erection of seven apartments. The second application involved demolition of a remaining building on the site with a somewhat different apartment layout compared to the first.

The applicants were granted leave to apply for judicial review in October 2004 and January 2006 for various grounds, including alleged failures by An Bord Pleanla to provide adequate reasons for its decisions, particularly regarding the impact on the Residential Conservation Area character of Shrewsbury Road and departures from inspector recommendations. The applicants also raised several alleged breaches of the Planning and Development Regulations 2001, including issues with site notices, newspaper notices, elevation drawings, social and affordable housing proposals, and incorrect fees.

Extensive submissions were made by the parties, except for the notice party who maintained a watching brief. The court considered disputes about compliance with procedural requirements such as the timing and form of site notices, the adequacy of descriptions in newspaper notices, and the completeness of application forms. The court evaluated whether any breaches caused prejudice to the applicants or invalidated the planning process.

Legal Issues Presented

1. Whether An Bord Pleanla failed to provide adequate reasons and considerations for its decisions granting planning permission, particularly regarding the impact on the Residential Conservation Area and departure from inspector recommendations.
2. Whether procedural breaches of the Planning and Development Regulations 2001 (including site notice erection, newspaper notice content, elevation drawings, social and affordable housing proposals, and fee payment) invalidated the planning permissions or prejudiced the applicants.
3. Whether An Bord Pleanla acted unlawfully in dealing with an application or appeal while related High Court proceedings were ongoing, contrary to section 37(5)(a) of the Planning and Development Act 2000.

Arguments of the Parties

Applicants' Arguments

• An Bord Pleanla failed to give main reasons and considerations for its decisions, especially concerning the alleged incompatibility of the development with the unique character of Shrewsbury Road as a Residential Conservation Area.
• The Board failed to provide proper reasons for departing from the inspector’s recommendations, notably regarding proximity to the Royal Dublin Society grounds and the balcony door facing the applicants' premises.
• Procedural breaches of the Planning and Development Regulations 2001 occurred, including failure to erect proper site notices, inadequate newspaper notices failing to describe demolition of habitable houses, incomplete elevation drawings, omission of social and affordable housing proposals, and submission of incorrect fees.
• The Board unlawfully dealt with an application or appeal while related High Court proceedings were ongoing, breaching statutory provisions.

Respondents' Arguments

• The Board provided adequate reasons and considerations addressing planning history, development plan provisions, and the Residential Conservation Area status, including reasons for not accepting the inspector’s recommendations on conditions.
• The applicants were aware of the development proposals and had sufficient opportunity to object, thus no prejudice arose from alleged procedural breaches.
• The site notices were erected timely and on an appropriate white background as required under the circumstances.
• The newspaper notices and planning application forms adequately described the demolition of existing buildings, which were not occupied as habitable houses at the time.
• The omission of the second applicant’s dwelling on elevation drawings did not cause prejudice as the dwelling was shown on site plans and the Board was aware of its location and impact concerns.
• Social and affordable housing obligations under Part V of the Act were met through an agreement with the planning authority, and the applicants were not prejudiced by this arrangement.
• The incorrect fee lodged was a minimal discrepancy and did not warrant interference under the principle of de minimis non curat lex.
• Section 37(5)(a) does not prevent the Board from deciding on applications or appeals that have been judicially reviewed but not finally determined; thus no breach occurred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mulholland v. An Bord Pleanla [2006] I.L.R.M 287	Requirement under s. 34(10) of the Planning and Development Act 2000 for planning authorities and the Board to give main reasons for decisions and for reasons when departing from inspector recommendations.	Confirmed that the Board fulfilled its statutory obligation by adequately addressing substantive issues and reasons in its decisions.
O'Donoghue v. An Bord Pleanla [1991] I.L.R.M. 750	Reasons given by the Board must be sufficient for court review and to satisfy persons affected that issues were properly considered.	Supported the court's conclusion that the Board's reasons were intelligible and addressed relevant matters.
State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35	Purpose of requirement to give reasons is to enable applicants to assess chances of appeal and prepare for hearings.	Applied to affirm that the Board's reasons served this purpose adequately.
Lancefort v. An Bord Pleanla [1999] 2 IR 270	Judicial review should not be used as a further appeal where statutory appeals exist; importance of respecting statutory appeal mechanisms.	Referenced to emphasize judicial restraint and that applicants' rights to be heard were protected by the statutory process.
O'Keeffe v. An Bord Pleanla [1993] I.R. 39	Assessment of what an informed person would understand from the reasons and conditions provided by the Board.	Used to determine that the Board's decision was sufficiently clear to those involved.
Kelly v. Roscommon County Council (Unreported, 2006)	Site notice color requirement under specific circumstances.	Applied to reject applicants' argument that the site notice should have been yellow, confirming white was appropriate.
Fynes v. An Bord Pleanla (Unreported, 1998)	Board should determine applications afresh; minor procedural breaches not fatal unless misleading or prejudicial.	Supported the court's exercise of discretion to refuse relief for minor or technical breaches that did not prejudice applicants.

Court's Reasoning and Analysis

The court carefully examined the statutory framework under the Planning and Development Act 2000 and the Planning and Development Regulations 2001, particularly the requirements to provide reasons for decisions and to comply with procedural regulations concerning notices, drawings, and fees.

Regarding the adequacy of reasons, the court found that the Board had sufficiently addressed the relevant planning considerations, including the Residential Conservation Area status, planning history, and the impact on adjoining properties. The Board's reasons were intelligible and met statutory requirements, including explaining departures from inspector recommendations related to conditions.

On procedural breaches, the court noted disputes about the timing and color of site notices but concluded there was no prejudice to the applicants since they were aware of the development in sufficient time to object and appeal. The newspaper notices and application forms adequately described the demolition of existing buildings, which were not habitable houses at the time, negating the applicants' claims.

The omission of the second applicant’s dwelling from elevation drawings was not prejudicial as the dwelling was shown on site plans and the Board was fully aware of its location and concerns. The applicants were not prejudiced by the social and affordable housing arrangements, which involved a monetary agreement with the planning authority. The minor fee discrepancy was deemed de minimis and insufficient to warrant relief.

The court rejected the applicants' legal argument that the Board breached section 37(5)(a) by dealing with applications during ongoing judicial review proceedings, interpreting the provision as not applying to judicial review but only to pending appeals before the Board.

Overall, the court exercised its discretion against granting certiorari, finding that the applicants had not been prejudiced by any breaches and that the planning permissions were validly granted following appropriate consideration.

Holding and Implications

The court REFUSED the applicants the relief sought in both judicial review applications.

The direct effect of this decision is that the planning permissions granted by An Bord Pleanla for the developments at Shrewsbury Road stand and are not quashed. The court found no procedural or substantive irregularities sufficient to invalidate the Board’s decisions. No new legal precedent was established; rather, the judgment reaffirms established principles regarding the sufficiency of reasons, procedural compliance, and the discretionary nature of certiorari in planning cases.