Murphy v An Bord Plean�la

Factual and Procedural Background

The applicant sought an order of certiorari to quash a decision dated 18th April 2001 by the respondent made under the Local Government (Planning and Development) Acts 1963 to 1999. The decision granted planning permission to the first named notice party for a development involving partial change of use of a house and conversion and first floor extension of a domestic store to a ground and first floor café located at a premises in County Cork. The applicant, a neighbour, was the appellant in an appeal before An Bord Pleanala against the planning permission granted by Cork County Council.

The first named notice party initially applied for planning permission in October 1998 but withdrew the application in December 1998 during ongoing Circuit Court proceedings brought by the applicant against the notice parties. A second application was made in January 1999 for retention of an extension and paving, which Cork County Council refused in July 1999 for three stated reasons. A third application was made in March 2000 for partial change of use and first floor extension, which Cork County Council granted in August 2000 subject to conditions. The applicant appealed this grant to An Bord Pleanala.

The applicant's appeal alleged the original development was illegal and that the proposed development incorporated that illegal work. This allegation was tied to ongoing Circuit Court proceedings which were subsequently withdrawn and struck out in October 2000. The planning inspector for An Bord Pleanala recommended refusal of the application based on proper planning considerations and impact on residential amenity but did not conclusively address the legality of the earlier works. Despite the inspector's recommendation, An Bord Pleanala granted planning permission in April 2001.

The applicant was granted leave to apply for judicial review challenging the respondent's decision on grounds including alleged error in law, unreasonableness of the decision, and failure to properly consider the status of the alleged unauthorised development incorporated into the proposed works.

Legal Issues Presented

1. Whether An Bord Pleanala is prohibited from granting planning permission where the proposed development incorporates an extant development alleged to be unauthorised.
2. Whether an application for planning permission must include an application for retention of any alleged unauthorised development incorporated in the proposal.
3. Whether An Bord Pleanala is obliged to expressly determine if a particular existing element of a proposal is unauthorised.
4. Whether the decision of An Bord Pleanala was irrational for failing to consider and determine the status of an alleged unauthorised structure.
5. Whether An Bord Pleanala failed to consider relevant matters or took into account irrelevant matters in making its determination.

Arguments of the Parties

Applicant's Arguments

• The respondent erred in law by failing to consider relevant matters and taking into account irrelevant ones, rendering the decision fundamentally void.
• The decision was unreasonable due to a fundamental misunderstanding of the legal status of the proposed development, which incorporated an allegedly unauthorised structure.
• The grant of planning permission implicitly approved an extant unauthorised development.
• An Bord Pleanala was required to determine the status of the alleged unauthorised extension but failed to do so.
• The decision was irrational as it permitted development over an illegal structure.

Respondent's Arguments

• The earlier works were exempted developments, not unauthorised developments.
• The grant of planning permission for the first floor extension does not implicitly approve any earlier unauthorised works.
• Section 26(11) of the Local Government (Planning and Development) Act 1963 clarifies that planning permission alone does not entitle carrying out development contrary to law.
• An Bord Pleanala was not obliged to determine the status of the earlier works, especially as the Circuit Court proceedings were withdrawn and struck out.
• Any enforcement issues related to alleged unauthorised development are matters for the planning authority, not for An Bord Pleanala in the appeal process.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Convery v. Dublin County Council [1996] 3 I.R. 153	Section 26(11) of the Local Government (Planning and Development) Act 1963 means planning permission does not authorize unlawful acts.	Confirmed that planning permission does not authorize unlawful development; thus, the grant did not implicitly approve any alleged unauthorised earlier works.
Keane v. An Bord Pleanala [1998] 2 I.L.R.M. 241	Planning permission authorizes development under planning law but does not remove the need for other lawful consents or licenses.	Supported that planning permission does not guarantee lawful commencement of development; further permissions or consents may be needed.
Cablelink Limited v. An Bord Pleanala [1999] 1 IR 596	Planning permission cannot be conditioned on obtaining other licenses as s. 26(11) already covers this; planning authorities cannot assume illegal acts will be done.	Reinforced that An Bord Pleanala cannot assume illegal acts will follow planning permission and that enforcement is a separate matter.
Fingal County Council v. William P. Keeling & Sons Ltd [2005] 2 I.R. 108	Doctrine of estoppel does not prevent asserting exempted development status despite prior planning applications.	Rejected estoppel argument that applying for planning permission precludes claiming development is exempted; no cogent basis shown.
Frescati Estates v. Walker [1975] I.R. 177	Applicant must have legal interest to carry out development.	Distinguished on facts; here the applicant had capacity to carry out development, so the case did not preclude granting permission.

Court's Reasoning and Analysis

The Court examined the statutory framework under the Local Government (Planning and Development) Act 1963, particularly section 26 and subsection (11), which clarifies that planning permission does not entitle carrying out any development contrary to law. The Court noted the absence of any express statutory prohibition preventing An Bord Pleanala from granting permission where the proposed development incorporates an alleged unauthorised extant development.

The Court found that An Bord Pleanala made no determination on whether the earlier works were unauthorised or exempted developments. The Circuit Court proceedings that could have resolved this issue were withdrawn and struck out without order, and no order existed establishing illegality of the earlier works. The Court held that the applicant failed to prove the earlier works were necessarily unlawful.

Relying on established case law, the Court emphasized that planning permission only assures compliance with planning legislation and does not authorize unlawful acts. The Court rejected the applicant's contention that the grant of permission implicitly approved the alleged unauthorised development. It further held that An Bord Pleanala was not obliged to determine the status of the earlier works and did not act irrationally by failing to do so.

The Court also considered the applicant's argument that An Bord Pleanala failed to have regard to relevant considerations. It found that the Board was fully aware of the dispute about the earlier works and proceeded to make its decision based on proper planning and development of the area, fulfilling its statutory obligations.

Finally, the Court distinguished the present case from others cited by the applicant involving extensions of unauthorised developments and noted that any enforcement issues regarding alleged unauthorised works are matters for the planning authority, not the appellate body.

Holding and Implications

The Court's final ruling is that the applicant failed to establish any grounds for judicial review and the application is DISMISSED.

The direct effect of this decision is that the planning permission granted by An Bord Pleanala on 18th April 2001 remains valid and is not quashed. The Court did not establish any new precedent but reaffirmed that planning permission does not implicitly authorize unauthorised developments and that An Bord Pleanala is not required to determine the legality of extant developments incorporated into a proposed development when making its decision.