High Court refuses leave for judicial review of planning decision regarding West Wood Club Limited. Leave refused on all grounds including procedural breaches and irrationality.

Neutral Citation Number: [2010] IEHC 16

THE HIGH COURT

2008 1234 JR

BETWEEN

WEST WOOD CLUB LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

JUDGMENT of Mr. Justice Hedigan delivered on the 26th of January 2010

1. These proceedings concern an application for leave to apply by way of judicial review pursuant to s.50A of the Planning

and Development Act 2000 (“the Act of 2000”), as amended by the Planning and Development (Strategic Infrastructure)

Act 2006. It was agreed by the parties that the hearing of this matter should proceed by way of a “telescoped hearing”,

that is, on the basis of the application for leave and the substantive grounds being heard together.

2. The applicant is a limited liability company which owns a sports and leisure centre at Clontarf Road, Fairview, Dublin 3.

Its facilities include a 50 meter swimming pool, seven indoor tennis courts, three outdoor tennis courts, an indoor

basketball court, a 24,000 square foot gym, dance studios, an indoor running track, a climbing wall, child care facilities, a

spa, a sports shop, a café and a restaurant.

3. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and

Development) Act 1976 charged with the determination of certain matters arising under the Planning and Development

Acts 2000 to 2006.

4. The notice party is the local authority with responsibility for the administrative area of the City of Dublin. One of its

functions is the control, registration and decision-making for new developments, in particular, through granting or refusing

applications for planning permission.

Planning History

5. On the 7th August, 1998, the applicant was granted planning permission by Dublin Corporation, the predecessor to the

notice party, for the development of lands adjoining Fairview Park. Provision was made in the plans, which were approved,

for, inter alia, a restaurant use. On the 23rd December, 1999, the applicant was granted planning permission in respect of

certain alterations to the original grant of permission.

6. The applicant subsequently obtained an intoxicating liquor licence from the District Court. In 2002 the applicant began

to operate a bar/disco on the premises called “Bar Code”. The notice party took exception to this, primarily on the

grounds of the scale of the bar usage. It wrote to the applicant on the 22nd January, 2003, on the 13th February, 2003,

and again on the 10th June, 2003, alleging that part of the building was unauthorized for use as a public bar.

7. On the 17th July, 2003, the applicant applied for a declaration pursuant to s.5 of Act of 2000, on a without prejudice

basis, as to whether certain matters constituted exempted development including “the use of that portion of the

premises referred to as the ‘leisure centre’ for use as a leisure centre together with the ancillary use for the sale of

intoxicating liquor.” Section 5 of the Act of 2000 enables any person to request in writing a declaration from the relevant

planning authority as to whether or not a development is or is not exempted development within the meaning of the Act

of 2000.

8. The notice party determined that the development was not exempted development in its decision dated the 21st

August, 2003. On appeal, the respondent also determined that the bar usage was not exempted development in a

decision dated the 30th January, 2004, and that the use of part of the leisure area for the sale of intoxicating liquor

constituted a material change of use, having regard to its scale and the provision of a separate entrance.

9. Enforcement proceedings were commenced by the notice party against the applicant in May 2005 pursuant to s.160 of

the Act of 2000 on the grounds that the bar usage was unauthorized development. Those proceedings were adjourned

generally on the 17th July, 2007, upon the applicant agreeing to submit an application for retention permission, without

prejudice to its position that the development was unauthorized.

10. The applicant then made two separate applications for retention permission on the 5th December, 2007 to the notice

party. One of the applications, referred to by the applicant as the “use application”, was an application for retention of a

change of ancillary use of part of the established leisure centre for the sale of intoxicating liquor together with extensions

and facilities related to this change of use. The other application, referred to by the applicant as the “works application”,

was for the retention of various other works that had been carried out on the site including various extensions, alterations

to approved elevations, retractable awning, signage, portacabins, metal shipping containers, a water feature, a climbing

wall and car parking.

11. The “use application” was refused by the notice party in its entirety in a decision dated the 2nd February, 2008.

Some of the works as detailed in the “works application” were granted retention permission by it and others were refused.

12. The applicant appealed the decisions of the notice party to the respondent on the 1st March, 2008. The respondent

received various submissions/observations from third parties, which were not circulated to the applicant. In decisions

dated the 12th September, 2008, the respondent refused retention permission in respect of the “use application” and only

granted retention permission in respect of some of the works in the “works application” i.e. north-westward extensions of

243 square meters; offices and storage on the second floor; an increase in roof level from one to three storeys to provide

for a climbing wall and one portacabin and metal shipping container.

13. It is these decisions of the respondent of the 12th September, 2008, that the applicant seeks to challenge in these

proceedings. It does so by reference to eight principal grounds, which will be dealt with below. The reasons and

considerations for the respondent’s decision in respect of the “use application” were stated in the decision to be as

follows:-

“1. The proposed retention of use of part of the previously approved Sports Leisure Club complex within the West

Wood Leisure Centre for the sale of alcoholic liquor (indicated as ‘Bar Code’), by reason of its scale, separate

entrances and operational hours, is not considered subservient to the primary use of the site as a sports and

leisure centre. The retention of ‘Bar Code’ a licensed premises, of the scale proposed, for the sale and

consumption of alcoholic liquor is a ‘non permissible use’ as set out in paragraph 14.4.9 and 14.5.0 of the current

Dublin City Development Plan. The retention of use would, therefore, materially contravene the “Z9” zoning

objective set out in the development plan, which seeks to preserve, provide and improve recreational amenities

and open space’ and would, therefore, be contrary to the proper planning and sustainable development of the

area.

2. On the basis of the planning history of the site and the submissions made in connection with the application and

the appeal it appears to the Board that the proposed development relates to a site, the use of which is

unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The

retention of works associated with the facility as a licensed premises would facilitate the consolidation and

intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to

consider the grant of a permission for the proposed development in such circumstances.”

14. The reasons and considerations with regard to the “works application” are as follows:-

“1. On the basis of the planning history of the site and the submissions made in connection with the application

and the appeal, it appears to the Board that the proposed development relates to a site the use of which is

unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The

retention of works associated with this facility as a licensed premises would facilitate the consolidation and

intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to

consider the grant of permission for this element of the development in such circumstances.

2. It is considered that the Bram Stoker Museum/Dracula Experience is an intensification of use on a severely

restricted site, would constitute overdevelopment of the site by reason of access arrangements for this element

of the development proposed for retention and would, therefore, be contrary to the proper planning and

sustainable development of the area.

3. The use of portacabins and shipping containers as a permanent/semi-permanent storage facility would

constitute overdevelopment of the site and would be unacceptable for visual amenity and health and safety

reasons. This element of the development proposed for retention would, therefore, seriously injure the visual

amenities of the area and be contrary to the proper planning and sustainable development of the area.

4. The vehicle access and car parking proposed for retention would cause traffic conflicts, would constitute

substandard development with regard to adequate aisle widths and pedestrian linkages, would provide inadequate

segregation for cars and pedestrians and would endanger public safety by reason of obstruction of road users and

pedestrians. Furthermore, the proposed retention of car parking at the existing scale, which is additional to the

original development on the site, would constitute significant overdevelopment of the site and contravene Dublin

City Council Policy T2 to encourage modal shift. The retention of this element of the proposed development would,

therefore, be contrary to the proper planning and sustainable development of the area.

5. The signage proposed for retention relates to an unauthorised and non-conforming use ‘Bar Code’ and,

furthermore, it is considered that the signs proposed for retention would create visual clutter and are excessive in

size and would be contrary to the Dublin City Development Plan 2005-2011. This element of the development

proposed for retention would, therefore, seriously injure the visual amenities of the area and be contrary to the

proper planning and sustainable development of the area.

6. The development proposed for retention would, when taken in conjunction with existing permitted development,

constitute overdevelopment of this site and would be contrary to zoning objective Z9 ‘to protect, provide and

improve recreation amenity and open space.’ The retention of this element of the development would, therefore,

be contrary to the proper planning and sustainable development of the area.”

15. The applicant seeks orders of certiorari quashing the impugned decisions of the respondent, various declaratory reliefs

and an order remitting the determination of the appeal to the respondent with a direction to the respondent to consider

and determine the said appeal in accordance with law.

Leave requirement

16. Section 50A of the Act of 2000, as amended by the Planning and Development (Strategic Infrastructure) Act 2006,

provides that leave shall not be granted to an applicant unless this Court is satisfied that there are “substantial grounds”

for contending that the decision of the respondent is invalid or ought to be quashed and that the applicant has a

“substantial interest” in the matter.

17. The meaning of the phrase “substantial grounds” was explored by Carroll J. in McNamara v. An Bord Pleanála [1995] 2

I.L.R.M. 125:-

“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, I am not concerned in trying to ascertain what the eventual result would be. I

believe I should go no further than satisfying myself that the grounds are ‘substantial’. A ground that does not

stand any chance of being sustained (for example, where the point has been decided in another case) could not be

said to be substantial. I draw a distinction between the grounds and arguments put forward in support of those

grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a

ground, as such, to be substantial, I do not also have to say that the Applicant is confined in this argument at the

next stage to those which I believe may have some merit.”

18. The above passage was approved by the Supreme Court in In Re Article 26 and the Illegal Immigrants (Trafficking)

Bill, 1999 [2000] 2 I.R. 360 and applied by this Court (McKechnie J.) in Kenny v. An Bord Pleanála (No. 1) [2001] 1 I.R. 565

and (Kelly J.) in Mulholland v. Kinsella (No.2) [2006] 1 I.R. 453.

19. It was not disputed by the respondent that the applicant in this matter has a “substantial interest” in the matter.

What remains at issue is whether the applicant has raised “substantial grounds” in these proceedings.

(i) Preliminary Point

20. The applicant raises a preliminary point as to the propriety of a senior executive officer at the office of the

respondent, Mr. Michael Donlon, who was not a member of the respondent’s board and who did not attend at board

meetings, swearing the respondent’s verifying affidavit to the statement of opposition.

21. Mr. Collins S.C., for the applicant, submitted that Mr. Donlon was not an appropriate person to swear a verifying

affidavit as he did not have personal knowledge of the matters contained therein. He cited the Supreme Court decision of

Probets v. Glackin [1993] 3 I.R. 134 which, he submitted, was authority for the proposition that an affidavit grounding an

application for judicial review should be sworn by the applicant. He contended that, in the same way, a verifying affidavit

should be sworn by a person who can verify facts in light of his or her own knowledge. He argued that members of the

Board would clearly be in a better position to swear a verifying affidavit than Mr. Donlon, whose affidavit, in his

submission, included several hearsay statements. He also relied on Gavin v. The Criminal Injuries Compensation Tribunal

[1997] 3 I.R. 132 in which Carroll J. held that the respondent in that case was required to speak on its own behalf and

that it was not acceptable for the secretary of the respondent to say what the respondent thought and what its reasons

were.

22. Ms. Butler S.C., for the respondent, noted that there was no obligation on a respondent to file a statement of

opposition or a verifying affidavit in the context of a leave application. She submitted that the intended statement of

opposition filed by the respondent set out, in full, the material which was before it and that the affidavit of Mr. Donlon

exhibited relevant documentation. She distinguished the case of Probets v. Glackin [1993] 3 I.R. 134 on the grounds that

the applicant in that case the applicant’s solicitor swore the affidavit grounding the application for judicial review and the

applicant sought to rely on it so as to confer an evidential status on the statutory declaration of the applicant exhibited

therein. Mr. Donlon, she observed, had not exhibited statutory declarations of other members of the Board. The complaint

in Gavin v. The Criminal Injuries Compensation Tribunal [1997] 3 I.R. 132 was not analogous, she further submitted, in

that, the affidavit of the secretary had set out reasons for the decision of the tribunal that had not been set out by the

tribunal itself. She referred also to The Village Residents Association Limited v. An Bord Pleanála [2001] 1 I.R. 441 where a

verifying affidavit was sworn by a person who was not member of the Board but where Laffoy J. found that as the

relevant documentation was before the Court, it enabled her to determine the issues which arose.

23. I am satisfied that the cases of Probets v. Glackin [1993] 3 I.R. 134 and Gavin v. The Criminal Injuries Compensation

Tribunal [1997] 3 I.R. 132 are distinguishable for the reasons outlined above by Ms. Butler and do not assist the

applicant’s contention that the respondent’s verifying affidavit should have been sworn by a member of the Board, in

circumstances where, as in The Village Residents Association Limited v. An Bord Pleanála [2001] 1 I.R. 441, the entirety of

the material upon which the respondent reached its decision is referred to in the statement of opposition (at para. 27)

and where Mr. Donlon exhibited relevant documentation in his affidavit including copies of the original grant of planning

permission and the amendments made to it in 1999; copies of the Inspector’s Report Discharge Form and the s.131 of the

Act of 2000 assessment forms; a copy of the Board’s planning inspector’s report and a copy of the Board’s order. The

basis upon which the Board made its decisions that are impugned in these proceedings is clear. To stipulate that an

individual member of the Board swear an affidavit would be superfluous in such circumstances. The objection of the

applicant on this point is, therefore, dismissed.

(ii) The respondent proceeded on a false assumption.

24. The first substantive ground raised by the applicant is that the respondent allegedly proceeded to determine the

applications for retention permission on the false assumption that no alcohol could be served on the premises at all, in

disregard of the permitted use as a leisure centre with ancillary restaurant usage.

25. Mr. Collins argued that there was a basic obligation in any application for planning permission that the respondent

would consider the actual permitted use and then go on to consider the proposed use. He further argued that the express

statement of the respondent in the decisions that “the proposed development relates to a site, the use of which is

unauthorised for use as a licenced premises, Bar Code, for the sale and consumption of alcoholic liquor” disregarded the

permitted use of the premises as a leisure centre and its ancillary use. This erroneous assumption, he submitted, fettered

the discretion of the respondent.

26. Ms. Butler argued that no user for the sale of alcohol had ever been advanced by the applicant other than the

development of a bar/disco in the form and scale presented by it and that was what was rejected. The respondent, she

contended, had never been asked to decide on the issue of whether alcohol could be served in the restaurant or in a

members’ bar and she further contended that it was always within the contemplation of the respondent that there would

be an ancillary restaurant use to the leisure centre use. The decision of the respondent in the retention applications did

not, she added, exclude this possibility. She characterised the effect of the respondent’s decision so as to exclude a

public house user on the basis that it was not ancillary or consistent with the zoning objectives for the site.

27. Having regard to the applicant’s arguments, I consider it may well be that the threshold required for leave has been

reached. However, it is quite clear to the Court, from the evidence on affidavit and the submissions made to it, that what

the applicant sought to achieve was the retention of the substantial bar/disco it operates and not the relatively limited

bar use that might be ancillary to the sports club. The purpose of such an extensive use, i.e. as a means of providing

financial support for the leisure centre, is obvious and the applicant made no secret of what it sought and why. Its

independence from the leisure centre facility is clear, in that, it has a separate entrance and has different opening hours,

opening much later than the rest of the facility. In addition, it is open to the general public, as opposed to members only.

The independence of “Bar Code” is evident from the description of its use as being “complementary” to that of the leisure

centre, as stated at para.4.3 of the submission of Mr. Kieran O’Malley, town planning consultant, of Kieran O’Malley & Co.

Ltd, to the respondent dated the 5th March 2008.

28. I am satisfied that the applicant was not interested in anything else or in anything less than what it sought in its

application for retention permission, that is, a bar/disco serving alcohol to the general public, open late at night. Although

it was prepared to agree a slight reduction in the limit for the use of 1100 persons, as opposed to 1300 persons, as it

proposed to the respondent on appeal, a limited bar service ancillary to the leisure centre was of no interest to the

applicant. The respondent was not asked to consider such a proposition. It determined the application as presented to it

by the applicant only. The substance of the applicant’s complaint that the respondent fettered its discretion by not

acknowledging that any alcohol could be served on the premises is not supported by the evidence. Thus, although I grant

leave albeit with some doubt, no relief should be granted on this ground.

(iii) The respondent relied on its previous determination under s.5 of the Act of 2000.

29. The applicant also makes the case that the respondent fettered its discretion or pre-judged the appeals by relying on

its previous determination in respect of the s.5 declaration and that it did not deal with the applications for retention

permissions on their own merits. The applicant complains that the respondent considered itself bound by the terms of its

2004 declaration and that it was unaware that this approach would be taken and so did not obtain an opportunity to

make any arguments in this regard.

30. Mr. Collins submitted that the respondent erred in law. He cited the judgment of Keane J. in Carrigaline Community

Television Co. Ltd. v. Minister for Transport [1997] 1 I.L.R.M. 241 which refers to a number of U.K. decisions dealing with

the duty of public authorities with a statutory discretion to listen to each application. He also highlighted the

pronouncements of the Supreme Court on the issue of pre-judgment in O’Callaghan v. Mahon [2008] 2 I.R. 514 and Radio

One Limerick Ltd. v. I.R.T.C. [1997] 2 I.R. 291. He submitted that there were considerable differences between the s.5

reference in 2004 and the application for the use retention in 2008 (e.g. specific information was given in the use

application as to the proposed occupancy of the club; comparative information was furnished with the use application and

the area proposed for the sale of alcohol was smaller in the use application). He argued that the respondent had

disregarded the 1997 and 1999 planning permissions in place of the 2004 declaration, in error.

31. Ms. Butler submitted that the inspector’s report in the retention applications demonstrated a comprehensive analysis

of whether the use should be granted planning permission on its merits by reference to the proper planning and

sustainable development of the area, as is required under s. 34(2) of the Act of 2000, having first determined that the

use was not ancillary to the permitted use. She noted that the respondent had agreed with the inspector’s assessment

that the proposed development was not in accordance with the proper planning and sustainable development of the area

and she contended that the use decision did not start from the proposition that the issue was already decided. In her

submission the respondent considered the application and rejected it on the merits. Moreover, the s.5 declaration formed

part of the planning history of the site to which the respondent is permitted to have regard when determining an appeal,

as was accepted by Murphy J. in Fitzgerald v. An Bord Pleanála (Unreported, High Court, 11th November, 2005).

32. I am satisfied that the applicant has satisfied the requirement of substantial grounds on this point. Dealing with this

ground on a substantive basis; it is clear from the terms of the reasons given by the respondent to refuse the works

application, quoted at para.13 above, that the respondent first addressed the question of whether the bar usage was

ancillary or not. It did not start from the proposition that the issue was already decided. In paragraph 1 it outlined the

objective reasons as to why it was not an ancillary use, in its view, i.e. “scale, separate entrances and operational

hours”. I note that in the s.5 declaration the respondent did not find that the use was not ancillary based on its

operational hours. The reason given in that declaration as to why the “Bar Code” use constituted a material change of

use and thus was not exempted development was “its scale and the provision of a separate entrance”.

33. The reasons for refusing retention permission go on to outline that the respondent considered that the proposed use

“of the scale proposed” was a non-permissible use as per paragraphs 14.4.9 and 14.5.0 of the current Dublin City

Development Plan (“the development plan”) and materially contravened the “Z9” zoning objective of that plan, the

objective being “to preserve, provide and improve recreational amenities and open space.” The reasons also

acknowledge that the respondent took the planning history of the site into account together with the submissions made

to it in reaching its conclusion. In addition, the report of the inspector notes the previous s.5 declaration and its effect

but then goes on to state that the main issues in the appeal “is whether the principle of ‘Bar Code’ … is acceptable in

terms of the proper planning and sustainable development of the area.” In determining that issue she assessed “Bar

Code” as against the development plan and the impact upon the character of the area. Therefore, the evidence is such

that the respondent embarked upon a new and distinct analysis in the context of the application for retention permission

by reference to the factors identified in s.34 (2) of the Act of 2000, as opposed to determining whether the use

constituted development or not under s.5 of the Act of 2000.

34. It is also to be observed that the s.5 declaration was never challenged by the applicant. It formed part of the

planning history of the site, as mandated by s. 5(5) of the Act of 2000. It seems to me that the respondent was correct

to have regard to it when determining the appeals before it. Indeed it was inevitable that the s.5 declaration would be

revisited in circumstances where the applicants themselves had formulated their application for retention of an existing

use in terms of an ancillary or complementary use to the leisure centre. It was proper that the respondent had regard to

a relevant planning decision which it made only a relatively short time before it dealt with the applicant’s appeal in the

interests of consistency. That was a decision made following a formal process and which was entered in the planning

register. Once entered it became part of the planning history of the site and was properly taken into consideration as held

by this Court in Fitzgerald v. An Bord Pleanála (Unreported, High Court, 11th November, 2005). In my view, for the

reasons outlined, it is clear the respondent did not in fact fetter its discretion as contended by the applicant and

therefore the relief sought should not be granted.

(iv) There was a breach of fair procedures on the part of the respondent.

35. The next ground to be advanced was that the respondent breached natural justice or fair procedures for the following

reasons: i) by failing to inform the applicant of the approach it was going to take in respect of the s.5 declaration; ii) by

failing to circulate third party submissions to the applicant, which made allegations of corruption against it, thus depriving

it of an opportunity to comment on them; iii) by failing to have regard to the comparative information from St. Vincent’s

G.A.A. club and city centre licensed premises, as included in the submissions of Mr. Kieran O’Malley of Kieran O’Malley &

Co. Ltd., Town Planning Consultants, when reaching its decision. Mr. Collins relied on McGoldrick v. An Bord Pleanála

[1997] 1 I.R. 497 in arguing that the decisions of the respondent should be set aside on this ground. In that case the

respondent was held not to have acted in accordance with fair procedures when it concluded, despite the known

willingness of the applicant to supply further evidence if so required, that insufficient evidence had been adduced on an

issue of fact and law that hitherto had not been disclosed to him.

36. In response to the allegation that there was a failure by the respondent to give notice to the applicant of its intention

to consider its approach regarding the s.5 declaration, Ms. Butler pointed out that the applicant was aware that the s.5

application had been determined against it and made submissions with regard to it. She referred to Stack v. An Bord

Pleanála (Unreported, High Court, Ó Caoimh J., 7th March, 2003) which concerned inter alia the reliance by the

respondent on a previous decision made by it in respect of an adjacent site. She noted that Ó Caoimh J. held that the

previous decision was a matter of which knowledge must at least be imputed to the applicants as it formed a matter of

public record and that there was no breach of natural justice in relying on it. She noted that this case involved a decision

on the same site of which the applicant must have been aware. Ms. Butler submitted that the issues raised by the third

parties in their submissions had previously been raised in the submissions to the notice party, of which the applicant was

aware. As to the failure to have regard to the comparative information, Ms. Butler disputed the relevancy of the

comparators furnished by the applicant. She submitted that the procedure adopted by the respondent conformed to the

requirements of fair procedures in the planning context, as set out by Murphy J. in State (Haverty) v. An Bord Pleanála

[1987] I.R. 485. She distinguished McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 on the basis that the applicant in the

instant case was on notice of the submissions made and did get an opportunity to respond to them and in that case

Barron J. appeared to be influenced by the fact that the outcome of the respondent’s decision would be to brand the

applicant a liar. She also relied on Evans v. An Bord Pleanála (Unreported, High Court, 7th November, 2003) in support of

the proposition that to be circulated submissions must go beyond the original issues raised.

37. The reports of the respondent’s inspector set out the matters which she considered to be of relevance, in identical

terms in the two reports as follows:-

“I consider the following observations, in conjunction with the objections summarised in the planner report above,

of relevance:-

- Negative impact on residential amenity

- Material contravention of the Development Plan zoning ‘Z9’

- Over development of the site

- The two concurrent planning applications (Reg. Ref. 6467/07 & 6466/07) are deliberately misleading and

confusing.

- Traffic hazard

- Set a negative precedent for similar unauthorised development

- The Bar Code use is not ancillary to the leisure club use, due to its size and the nature of the use, which is

unrelated to sports & leisure uses.”

38. Considering whether these grounds are sufficient to grant leave; with regard to the argument that the applicant

should have been notified as to the fact that the respondent intended to take the s.5 declaration into account, this

decision formed part of the planning history of the site and was never appealed. It was a decision well known to all and

which the applicants needed no invitation to argue. In any event it was the applicant itself that raised the matter in

circumstances where it sought to bring the bar/disco use within the concept of an ancillary or complementary use. In

Stack v. An Bord Pleanála (Unreported, Ó Caoimh J., 7th March, 2003) Ó Caoimh J. held as follows at p.21:-

“I am satisfied that the matter as represented in the earlier decision on what has been referred to as the historic

file was not in reality a new matter that required the application of s.13(12) of the Act of 1992 or any specific

notification to the applicants insofar as the same was taken into consideration by the Board. The earlier decision is

a matter of public record and was so at the time and I am satisfied that it was a matter of which knowledge must

at least be imputed to the applicants as the decision in question was made before the appeal in the instant case.”

39. In this case the s.5 declaration related to the same site. I am satisfied that it was legitimately taken into

consideration by the respondent when reaching its conclusion. I am satisfied that substantial grounds have not been

raised with regard to this aspect of fair procedures.

40. As to the failure to circulate the third party submissions; those submissions, which were forwarded to the respondent,

raised no new issues. They were broadly the same as those which were raised against the original application to the

notice party. The personal abuse contained within some of the submissions received by the respondent was no doubt

very insulting and annoying when discovered. However, it was clearly not of any relevance to that which the respondent

was charged with determining, i.e. the planning application. Therefore, the submissions did not require to be circulated

unless it was the case that the respondent intended to rely upon them, which it clearly did not in the instant case. The

personal characteristics, attributes or character of an applicant are not of relevance in the determination of permission for

development and are not stipulated as matters to be regarded under s.34 of the Act of 2000.

41. I am satisfied that McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 may be distinguished. The respondent, in that

case, drew an adverse conclusion against the applicant based on a submission received by it by a resident’s group that

was not furnished to the applicant. The applicant in the instant case was on notice of the allegations against it, given

that similar allegations had been made against it at first instance. In addition, no finding was made against the applicant

in the present case in respect of the submissions and its honesty was not impugned by the respondent.

42. However, if it were the case that the submissions so altered the nature of the original application so as to materially

change it or go beyond the original issues raised, then the relevant party may have to be notified so as to allow him

address the new scenario. See Evans v. An Bord Pleanála (Unreported, High Court, Kearns J., 7th November, 2003).

43. A similar view seems to have been taken by Murphy J. in the State (Haverty) v. An Bord Pleanála [2008] 2 I.L.R.M.

485. In that case the further submissions at issue concerned those submitted by or on behalf of a developer. Although

the Court found that on the facts of that case the prosecutrix chairman of a resident’s association along with that

association had made a “detailed professional argument” before the planning authority at first instance and the planning

board on appeal, it concluded that natural justice did not require that they be permitted to amplify their same arguments

in response to the further submissions of the developer’s planning consultant, Murphy J. commented as follows at p.493:-

“To avoid misunderstandings perhaps I should make it clear that I do not accept and I have not accepted any

general proposition that An Bord Pleanála could discharge its obligation to an interested party by delivering part

only of the appellant’s submission to any person entitled to receive the same. I could imagine cases in which

further communications from the developer extended the original submission so radically as to constitute a

different or additional case and in that event natural justice might well require An Bord Pleanála to postpone its

decision until it had afforded interested parties an opportunity of commenting upon the revised submission. ”

44. I am satisfied that the submissions in question raised no new issues requiring the respondent to circulate them for

comment. There is no obligation on the respondent to repeatedly circulate submissions treating of the same matter. I am

satisfied therefore that leave should not be granted.

45. As to not taking the comparators of St. Vincent’s GAA Club and city centre public houses into account as referred to

in Mr. Toal Ó Muire’s submissions to the notice party, I am satisfied that these are not valid comparators. The differences

between “Bar Code” and the bar at the clubhouse at St. Vincent’s GAA Club are so obvious, that the latter was not even

pursued as a comparator in the submissions of Mr. Kieran O’Malley to the respondent on appeal. It only featured in the

submissions of Mr. Ó Muire to the notice party at first instance. The comparison Mr. O’Malley made in respect of large city

centre pubs is also not a relevant comparator to a sports and leisure centre operating in the suburbs of Dublin. Any failure

of the respondent to take these comparators into account was therefore in my view justifiable. Substantial grounds not

having been demonstrated, I therefore refuse leave in this regard also.

(v) Failure to have proper regard to the Dublin City Development Plan 2005-2011

46. The complaint is also made by the applicant that the respondent failed to have proper regard to the development plan

in finding that the retention of the use would constitute a material contravention of the plan and that it failed to take into

account that a leisure centre is a permitted use under zoning objectives Z9 of the development plan. Permissible uses in

Z9 are outlined as follows:-

“Club house and associated facilities, Municipal golf course, Open space, Public Service installation which would not be

detrimental to the amenity of Z9 zoned lands.”

47. Mr. Collins submitted that the respondent erred in law in determining that the use, as formulated in the use

application, was in material contravention of the development plan, as the service of alcoholic beverages, in his

submission, was an ancillary use to a club house’s leisure centre. He noted that section 14.5.2 of the development plan

provided for uses which are open for consideration and he argued that a licenced premises came within these uses,

insofar as it was ancillary to a permitted use and that this relevant consideration was disregarded by the respondent. He

further argued, in respect of the works application that there was no basis for the respondent’s finding that the

application would be contrary to the zoning objective Z9 “to protect provide and improve recreation amenity and open

space.” He pointed out that the works included the onsite Bram Stoker Museum/Dracula Experience, which he submitted,

was not at variance with the aforementioned zoning objective.

48. Ms. Butler submitted that the interpretation and application of a development plan was clearly a planning question.

She cited the recent case of Quinlan v. An Bord Pleanála (Unreported, High Court, 13th May, 2009) where Dunne J.

concluded that matters involving planning policy lie properly within the remit of the planning authority and An Bord

Pleanála and so long as decisions are made in accordance with law that the courts should not interfere. In any event Ms.

Butler contended that the decision regarding the Bram Stoker Museum/Dracula Experience was made by reference to

intensification of use and access arrangements and not by reference to the area zoning.

49. I am satisfied that leave should not be granted on this aspect of the applicant’s case for the following reasons; in

Quinlan v. An Bord Pleanála (Unreported, High Court, 13th May, 2009) in respect of the jurisdiction of the respondent,

Dunne J observed:-

“I am therefore of the view that the determination of the issue of the established use of the property as of the

appointed day is a matter which is properly within the domain of the Planning Authority/the Board. In reaching that

conclusion, I accept that it is not for the court to consider objectively the evidence and information before the Board

and come to its own conclusion. Provided that the Board has reached its decision in accordance with the law there is no

basis for interfering with its decision. There is no evidence before me to suggest that the Board took into account any

irrelevant or inappropriate matters in the course of its considerations.”

50. I am satisfied that it has not been demonstrated to this Court that there was a failure on the part of the respondent

to have proper regard to the development plan or that the respondent proceeded on a mistake of law or an egregious

error on the facts in this case. This is evident from the terms of the inspector’s report and the decision as adopted by the

respondent. In particular, with respect to the Bram Stoker Museum/Dracula Experience decision, I am satisfied that there

was no error of law. Although such a museum came within the zoning objective of the site, there was a refusal of the

retention permission for it by reason of the intensification of the site and inadequate access to it, as is clear from the

terms of point 2 of the decision, to be found above at paragraph 14.

(vi) Failure to give adequate reasons

51. It was further submitted that the respondent failed in its duty to give adequate reasons for its decision, in such a

manner that the applicant could not ascertain what would be acceptable to it in the future. The cases of Mulholland v. An

Bord Pleanála (No.2) [2006] 1 I.R. 453; Deerland Construction Ltd. v. Agricultural Licences Appeals Board [2008] I.E.H.C.

289; South Bucks District Council & Anor. v. Porter [2004] U.K.H.L. 33 and Sweetman v. An Bord Pleanála [2007] I.E.H.C.

153 were relied upon by the applicant in this regard. Mr. Collins submitted that Stack v. An Bord Pleanála (Unreported, Ó

Caoimh J., 7th March, 2003) was not a correct statement of the law in this jurisdiction.

52. Ms. Butler submitted that the level of reasons required to be given by the respondent was not one which was to a

high standard. She cited Dunne & Anor. v. An Bord Pleanála (Unreported, High Court McGovern J., 14th December, 2006)

and Grealish v. An Bord Pleanála [2006] I.E.H.C. 310 in support of this contention. She further submitted that the decision

of the respondent complied with this standard, given that it had addressed the central issues in its decision. The law in

this jurisdiction, she submitted, was not such that a statement of reasons must identify what development is likely to be

acceptable on the site in future, rather the reasons must demonstrate that the decision-maker adequately addressed his

mind to the substantive issues and must be sufficient to enable a person to consider an appeal or judicially review the

decision as per Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2006] 1 I.R. 453. She noted that the only support for

the South Bucks position was the obiter comments of Birmingham J. in Sweetman v. An Bord Pleanála [2007] I.E.H.C. 153

but that Ó Caoimh J. in Stack v. An Bord Pleanála (Unreported, Ó Caoimh J., 7th March, 2003) had expressly rejected such

an approach, the point having been fully argued between the parties. She argued that if the respondent was duty bound

to give reasons as to the type of development that might be acceptable in the future it would fetter the discretion of the

respondent into the future and would deprive third parties of their right to make submissions as to the proposed

development.

53. The applicant has, in my view, demonstrated substantial grounds on this point and leave should accordingly be

granted. Addressing the issue substantively; the statutory duty to give reasons is enshrined in s. 34(10) of the Act of

2000 as follows:-

“(a) A decision given under this section or section 37 and the notification of the decision shall state the main

reasons and considerations on which the decision is based, and where conditions are imposed in relation to the

grant of any permission the decision shall state the main reasons for the imposition of any such conditions,

provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph

of subsection (4) in which the condition is described shall be sufficient to meet the requirements of the subsection.

(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or refuse

permission is different, in relation to the granting or refusal of permission from the recommendation in-

(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in

the case of a planning authority, or

(ii) a report of a person assigned to report on an appeal on behalf of the Board, a statement under paragraph (a)

shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse

permission.”

54. In Mulholland v. An Bord Pleanála [2006] 1 I.R. 453 Kelly J. found that although the legislature had introduced a

statutory duty to give reasons in the Act of 2000, the existing jurisprudence regarding what is required for reasons to be

considered as adequate at law continued to apply. In this regard he referred to the cases of O’Donoghue v. An Bord

Pleanála [1991] I.L.R.M. 750 and State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35. Murphy J. in

O’Donoghue summarised the duty to give reasons as follows at p.757:-

“…it is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the

courts to review it and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind

adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a

discursive judgment as a result of its deliberations …”

Finlay P. in the State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35 earlier found that the purpose of the

requirement for reasons was:-

“…to give … [to an] applicant such information as necessary and appropriate for him, firstly, to consider whether

he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and

secondly to enable him to arm himself for the hearing of such an appeal.”

Kelly J. , having reviewed the statutory framework and relevant jurisprudence outlined what is required to comply with the

duty to state considerations and reasons as follows at pp.464-465:-

“The statement of considerations must therefore be sufficient to:-

(1) give the applicant such information as may be necessary and appropriate for him to consider whether he has a

reasonable chance of succeeding in appealing or judicially reviewing the decision.

(2) arm himself for such hearing or review.

(3) know if the decision maker has directed his mind adequately to the issues which it has considered or is obliged

to consider.

(4) enable the courts to review the decision.”

55. McGovern J. in Dunne & Anor v. An Bord Pleanála [2006] I.E.H.C. 4000 had regard to inter alia the above authorities

when assessing the adequacy of the reasons given in the case before him and he also had regard to the following

passage from the judgment of Finlay C.J. in O’Keefe v. An Bord Pleanála [1993] I.R. 39 at p.76:-

“What must be looked at is what an intelligent person who has taken part in the appeal or has been appraised of

the broad issues which had arisen in it would understand from this document, these conditions and these reasons

…”

56. In Grealish v. An Bord Pleanála [2006] I.E.H.C. 310 O’Neill J. described the duty to give reasons as follows:-

“As set out above the legal obligation resting on the respondents to explain their decisions is a very light one, one

could even say almost minimal. It is well settled that they do not have to give a discursive judgment. They do

however, as set out in the judgment of Kelly J., in Mulholland’s case have to provide sufficient information to

enable somebody in the position of the applicant in this case to consider whether he has a reasonable chance in

succeeding in judicially reviewing the decision; can arm himself for such a review; can know if the respondent has

directed its mind adequately to the issues it had to consider; and finally give sufficient information to enable the

court to review the decision. Insofar as two of the main elements of the decision in this case are concerned i.e.

reasons and considerations based on scale and non integration, the decision fails on every aspect of the foregoing

test. There is literally nothing there to explain why a different conclusion is reached on these issues to that in 1990

or 1997.”

57. In the recent case of Sweetman v. An Board Pleanála (Unreported, High Court, 9th October, 2009), Birmingham J.

refused leave to the applicant on the ground that there was a failure on the part of the respondent to give adequate

reasons in circumstances the decision of the respondent left “no room for doubt as to how and why the Board came to

the decision that it did.” He expressed the view that the courts in this jurisdiction take a similar approach to the courts in

England as to the adequacy of reasons, referring to the judgment of Lord Brown of Eaton-Under Heywood in South Bucks

District Council v. Porter (No.2) [2004] 1 W.L.R. 1953 in particular at p.27:-

“Overall, the approach taken in England seems very similar. The observations of Lord Brown of Eaton-under-

Heywood in South Bucks District Council v. Porter (No.2) [2004] 1 W.L.R. 1953 which offers an overview of how the

situation is viewed in England and Wales generally accord with the approach of the Irish courts. In that case, Lord

Brown said that the decision must be intelligible and adequate and the decision must enable the reader to

understand why the matter was decided as it was and what conclusions were reached on ‘the principle important

controversial issues, disclosing how any issue of law or fact was resolved”. Reasons can be briefly stated, the

degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning

must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by

misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision

on relevant grounds. Such adverse inferences will not be readily drawn. The reasons need refer only to the main

issues in the dispute, not to every material consideration. They should enable disappointed developers to assess

their prospects of obtaining some alternative development permission or as the case may be, it should enable the

development’s unsuccessful opponents to understand how the policy or approach which underlies the grant of

permission may impact upon future, similar applications. The reasons for the decision must be read in a straight

forward manner, recognising that they are addressed to parties well aware of the issues involved and the

arguments advanced. Therefore, a reasons challenge will only succeed if the party aggrieved can satisfy the court

that he is genuinely being substantially prejudiced by the failure to provide an adequately reasoned decision.”

The applicant places much emphasis on the sentence above to the effect that reasons should indicate how future

applications would be dealt with. It is to be observed that the above comments are clearly obiter.

58. The only case where this issue was squarely before the Irish Courts and fully argued was in Stack v. An Bord Pleanála

(Unreported, High Court, Ó Caoimh J., 7th March, 2003). There, an argument was made that the decision to refuse to

grant the applicants planning permission was ultra vires due to the failure of the respondent to furnish any or adequate

reasons for its decision. It was contended that the decision was formulaic and ambiguous, in that, it was not clear if the

respondent intended to indicate that no development would be permitted on the site or in such areas or if the Board

intended to rule out all development on the site. Counsel for the applicant in that case relied on a passage from the

judgment of Lord Bridge of Harwich in Save Britain’s Heritage v. Secretary of State [1991] 2 All E.R. 10, which is

consistent with the position the House of Lords adopted in South Bucks District Council v. Porter (No.2) [2004] 1 W.L.R.

1953 as to the adequacy of reasons. That passage reads:-

“The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is

challenged on the ground of a failure to give reasons is whether the interests of the applicant have been

substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss

on the statutory provisions by attempting to define or delimit the circumstances in which the deficiency or

reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise

from one of three causes. First, there will be substantial prejudice to a developer whose application for permission

has been refused or to an opponent of development when permission has been granted where the reasons for the

decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken

within the powers of the Act. Secondly, a developer whose application for permission is refused may be

substantially prejudiced where the planning considerations on which the decision is based are not explained

sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some

alternative form of development. Thirdly, an opponent of development, whether the local planning authority or

some official body like the respondents, may be substantially prejudiced by a decision to grant permission in which

the planning considerations on which the decision is based, particularly if they relate to planning policy, are not

explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future

applications.”

Ó Caoimh J. at p.22, found that the above observations were obiter and rejected the statement as being a correct

statement of the law in this jurisdiction:-

“With regard to Save Britain’s Heritage v. Secretary of State [1991] 2 All E.R. 10, I accept the submissions of

counsel for the Board that the observations of Lord Bridge in his speech were obiter as they relate to the failure to

grant a developer planning permission and in the particular case the developer had in fact been granted planning

permission. I am not at all convinced that the views expressed by Lord Bridge accord with what has been stated

as being required in this jurisdiction and I am not inclined to accept this authority as representing a correct

statement of the law in this jurisdiction.”

59. I am satisfied, having regard to the above and to the jurisprudence on the duty to give reasons as set out in

paragraphs 55-59 that the law in this jurisdiction does not go so far as to impose a duty on the respondent to cite what

may be acceptable to it in a future application in order to comply with its duty to give reasons. On the facts of this case

I am satisfied that the reasons given as to why retention permission was not granted satisfy the requirements as

enunciated by Kelly J. in Mulholland v. An Bord Pleanála [2006] 1 I.R. 453. Sufficient reasons must be given so as to equip

the applicant to appeal the decision or to judicially review it. I am of the view that the reasons given by the respondent

conform to this standard. I note however that in fact it does appear that the reasons given do actually provide an

indication as what type of development would be likely to obtain permission on the site in question in any future

application i.e. changes to “scale, separate entrances and operational hours”. For the reasons above, I must refuse the

relief sought on this ground.

(vii) Irrationality

60. Mr. Collins submitted there was irrationality on the part of the respondent in granting permission in respect of some of

the works in the works application and in refusing others. He urged the Court to apply a test of anxious scrutiny in

assessing what the respondent did.

61. Ms. Butler submitted that some elements of the works application were undoubtedly connected with the use as a

bar/disco, such as the water feature, awning, outdoor chairs and tables. She argued that the construction of a structure

could not be divorced from a use which was found to be unauthorised.

62. Leave should be refused to the applicant on this ground. I am satisfied that it would be illogical on the part of the

respondent to allow works that are clearly connected with the refused bar/disco use. For example, taken together a

water feature, awning, outdoor chairs and tables would constitute a beer garden and thus would complement an

unauthorised use.

63. As to the signage, the decision made by the respondent was that some signs proposed for retention constituted

visual clutter. This is clearly a planning matter properly within the remit of the respondent. Leave is refused on this

ground.

64. In relation to the Bram Stoker Museum/Dracula Experience, the refusal was based on over intensification of the site

and inadequate access. This is a perfectly rational reason well within the remit of the respondent. Leave is also refused

on this ground.

(viii) Failure to take account of relevant matters and the taking into account of irrelevant matters

65. The applicant made the case that the respondent had regard to an irrelevant consideration based on the fact that a

note of a pre-planning consultation between the applicant’s representatives and the planning authority, prepared by the

planning authority, was not contemporaneous and omitted relevant information, in particular the alleged view of the

planning authority that it did not have a difficulty with some of the development. The consultations took place in

accordance with s.247 of the Act of 2000.

66. Ms. Butler submitted that although there was a statutory basis for pre-planning consultations that the content of

those discussions were not binding on the planning authority and cannot be relied on. She characterised the obligation on

the planning authority under s.247 of the Act of 2000 as being quite limited, a written record only being required for the

benefit of the planning authority to ensure consistency in its position. Even if the Court were to hold that the note was

insufficient, in her submission it was evident that the respondent was fully appraised of the applicant’s position that the

planning authority had led it to believe that it would receive permission for the works.

67. The note was exhibited in the second affidavit of Patricia Hyde, sworn on the 3rd July, 2009. The relevant segment

reads as follows:-

“Proposed Development: Main issue discussed was the regularisation of unauthorised public bar and nightclub at

the premises, lesser issue was regularisation of minor extensions to the premises, e.g. lift shaft and corridor.

…

Was proposal broadly acceptable? No

No 29 zoning precluded the use of the premises as a large public bar and nightclub.”

68. It is, clearly, a terse account of events but all that is required under s.247(5) of the Act of 2000 is that a record in

writing be kept of “any consultations … that relate to a proposed development including the names of those who

participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any

planning application in respect of the proposed development relates”. What the planning authority is required to do during

the course of these discussions is outlined in s.247(2) as follows:-

“(2) In any consultations under subsection (1), the planning authority shall advise the person concerned of the

procedures involved in considering a planning application, including any requirements of the permission regulations,

and shall, as far as possible, indicate the relevant objectives of the development plan which may have a bearing on

the decision of the planning authority.”

69. Section 247 (3) contains the following disclaimer:-

“The carrying out of consultations shall not prejudice the performance by a planning authority of any other of its

functions under this Act, or any regulations made under this Act and cannot be relied upon in the formal planning

process or in legal proceedings.”

70. The above provisions make it clear that the pre-planning consultations are precluded from being relied upon in the

planning process. They serve mainly to advise an applicant of the relevant procedures in the planning sphere and the

aspects of the development plan relevant to their application. In circumstances where they cannot be relied on in the

planning process it is difficult to see how a failure to comply with any requirements in relation thereto could invalidate the

decision reached at the end of that process. The applicant must be refused leave on this ground.

71. The applicant also complained that the respondent had misconstrued a photograph (photograph no. 4) which showed

portacabins on an adjacent site which, it was alleged, the respondent took to be on the site of the applicant leading it to

refuse permission for containers on the site on the grounds of visual amenity.

72. Ms. Butler submitted that there was no doubt that the location of the portacabins on the adjacent site were identified

to the respondent. She referred to the inspector’s report in this regard. For the respondent to have been misled, in her

submission, would have meant that the members of the board misread the map, which clearly displayed the boundaries

between the applicant’s site and the adjacent site and ignored the submissions of Mr. Ó Muire, on behalf of the applicant,

such a sequence of errors being an unsustainable proposition, in her submission.

73. I am satisfied that there is no evidence put forward to suggest that the respondent did not understand the exact

location of the containers on site. The photograph clearly shows what are shipping containers and what are portacabins

on the adjacent site. The map itself specifies and names the portocabins as belonging to Irish Rail, who operate on the

adjacent site. For these reasons, substantial grounds have not been raised on this point and accordingly, leave should be

refused.

Summary

74. For the reasons given above, I refuse leave in respect of the following grounds that were raised; breach of fair

procedures; the failure to have proper regard to the development plan; the irrationality of the decision and the failure to

take into account relevant matters and the taking into account of irrelevant matters. In respect of the remaining

grounds; i.e. that the respondent proceeded on a false assumption; that the respondent relied on its previous

determination under s.5 of the Act of 2000; that there was a failure to give adequate reasons, although I consider it was

appropriate to grant leave, on substantive examination I must refuse the reliefs sought by the applicant in this case for

the reasons as outlined above in this judgment.