Neville v. Bord Pleanala [2001] IEHC 119 (31st July, 2001)

This is an application pursuant to Section 82(3A) and (3B) of the Local Government (Planning and Development) Act, 1963 as amended by the Local Government (Planning and Development) Act, 1992 for leave to apply for Judicial Review in respect of a decision of the Respondent to grant planning permission subject to conditions for the development of a recital hall on the site occupied by a Real Tennis Court at Earlsfort Terrace in Dublin. The Applicant seeks the relief of

(c) Section 21(A) of the Local Government (Planning and Development) Act, 1963 provides that where a proposed amendment of a Draft Development Plan would be a material alteration of the Draft Development Plan, the Planning Authority is advised to cause notice of the proposed amendment to be published in the Iris Oifigiúil and in a newspaper circulating in its area and to place the proposed amendment of the Draft Development for public inspection for at lease one month.

(f) The proposal to remove the structure at issue from List 1, where it would have been preserved as a real tennis court, to List 2, where it would enjoy mere protection, was a material alteration of the Draft Development Plan. The provisions of Section 21(A) of the 1963 Act was referred to above were not complied with and consequently the downgrading of the proposed listed status of this structure was unlawful. As a further result of the said legality the ultimate listed status of the structure is unlawful. The said structure having been unlawfully removed from List 1, must, as a matter of law be said to remain on List 1.

(g) The recital of the fact that the said structure is on List 2 of the Dublin City Development Plan by An Bord Pleánala in granting planning permission constitutes an error of law by An Bord Pleánala. An Bord Pleánala further acted unlawfully and without jurisdiction as it was alerted to the legality surrounding the alleged listed status of the structure and nature during the oral hearing and failed to give due consideration to the issue or in the alternative wrongly concluded that the building was on List 2 of the Development Plan.

The Inspector concluded that the interior of the building was not protected. This conclusion was wrong in law. The Inspector’s error is highlighted by his own report. At page 21 of the report the Inspector notes “the building is included in List 2. Policy CA3 [of the Dublin City Development Plan] states “it is the policy of Dublin Corporation to prevent the demolition or any material alteration, without planning permission, of buildings and structures included in List 2, Volume 2.”

The building or structure at issue in these proceedings is described in the Dublin City Development Plan 1999 as a “Real Tennis court” and the said plan indicates that is included in List 2. This means that the building is to be protected as a real tennis court. The planning permission granted by An Bord Pleánala fails to protect the building as a Real Tennis court, and achieves a result for the building which is the opposite of the protection for the real tennis court the Development Plan sought to achieve. Had An Bord Pleánala had any regard to the Development Plan it would have sought to protect the building as a real tennis court. Consequently the decision of An Bord Pleánala was unreasonable and unlawful.

3. In reaching its decision An Bord Pleánala relied upon its stated interpretation of the International Charter for the Conservation and Restoration of Monuments and Sites (The Venice Charter) and of the Council of Europe Convention for the Protection of the Architectural Heritage of Europe 1985 (The Granada Convention). An Bord Pleánala and its Inspector concluded that the proposed development accorded with Article 11 of the Granada Convention and with Articles 5, 9 and 13 of the Venice Charter. Such conclusions, as set forth on pages 33 and 34 of the Inspector’s report are irrational, unreasonable and otherwise unlawful. The said conclusions were unsupported by evidence of relevant facts. Consequently the decision at issue is based on unlawful conclusions by An Bord Pleánala and its Inspector and is therefore void.

(b) The Commissioners of Public Works in Ireland acted unlawfully by applying for planning permission in violation of the express wishes of the donor for the real tennis court and structure and the result in planning permission is therefore void and without effect. The said Commissioners, being a public authority with responsibility for the gifts, had a particular legal responsibility not to act in relation to the gifts in a manner inconsistent with the terms upon which the gifts were made.

(c) An Bord Pleánala is restricted to considering the proper planning and development of the area in determining any appeal. An Bord Pleánala is on notice of a legal restriction and the use to which a building on land maybe put, whether such restriction arises by operation of public or private law, it may not grant planning permission for such a building or land which contravenes the said restrictions. Proper planning and development within the meaning of Section 26(1) of the Local Government (Planning and Development) Act 1963 must be interpreted as restricting An Bord Pleánala to only granting permissions for the lawful use of land. Unlawful use of land could never constitute proper planning and development within the meaning of the said Section. In the instant case An Bord Pleánala were on notice of a legal restriction of the use of the real tennis court and unlawfully ignored the restriction in granting permission which determined the said lawful restriction.

(d) In the alternative, An Bord Pleánala was aware of a legal dispute or debate as to whether Lord Iveagh’s gift was subject to a restriction as to use. An Bord Pleánala and its Inspector did not have jurisdiction to attempt to resolve the legal issues involved. An Bord Pleánala unlawfully formed an interpretation of the instrument granting the real tennis court to the State. Having thus acted unlawfully, the error was compounded by An Bord Pleánala and its Inspector reaching the wrong conclusion as to whether Lord Iveagh had lawfully conditioned his gift to the State as to use.

(f) An Bord Pleánala and the Commissioners of Public Works in Ireland or either of them ought to have sought the advice or the approval of the Commissioners of Charitable Donations and Bequests in relation to any deed of transfer between Lord Iveagh and the State or its representative prior to making the decision or making the application for permission, as the case may be. Unreasonably and unlawfully, no advice and/or approval was sought by either An Bord Pleánala or the Commissioners of Public Works.

5. The decision of An Bord Pleánala is unreasonable and therefore unlawful in as much as it is based on a conclusion by the Board’s Inspector and by the Board that the proposed development is reversible and that such reversibility is a form of protection for the real tennis court. No reasonable decision maker could have concluded that such hypothetical reversibility is any form of protection for the real tennis court. Theoretically, all works on or in listed buildings, including acts of demolition, are reversible provided the financial resources and skills for restoration are available. Reversibility of development on or in a listed building is an unlawful justification or basis for the grant of planning permission for such a building and affords no protection for the listed buildings.

The application of the Applicant is grounded upon an affidavit sworn by him in which he states that he is the Secretary of the Irish Real Tennis Association, an unincorporated sporting association. He says that in or about 1939 Lord Iveagh made a gift of certain properties in the vicinity of St. Stephens Green in the City of Dublin to the State. Amongst the properties was a building on Earlsfort Terrace which housed a real tennis court. These proceedings relate to the proposed development of the real tennis court. The Applicant says that the real tennis court is widely acknowledged to have been one of the worlds finest courts. Mr. Neville referred to correspondence passing between the then Taoiseach Mr. DeValera and Lord Iveagh dated the 4th May, 1939 and to a further letter dated the 1st August, 1939. The Applicant states that lamentably, Lord Iveagh’s wish in relation to the real tennis court appeared to have been ignored by the State. He points out that since the 1940’s, University College Dublin used the tennis court as a gymnasium/examination hall and latterly since the 1970’s has an engineering laboratory at which time also the office of Public Works partitioned off the eastern end of the court but it is only used as a store and offices on two levels. In March 1998 the Commissioners applied to Dublin Corporation for planning permission in relation to the real tennis court. The building in question is situated next to the National Concert Hall. The planning application sought to develop the real tennis court as an extension to the facilities available to the National Concert Hall for music recitals. Dublin Corporation granted planning permission for the proposed development. The Irish Real Tennis Association appealed this decision to An Bord Pleánala. On the 8th June, 1999 An Bord Pleánala granted planning permission to the Commissioners and the Applicant states that to the best of his knowledge neither An Bord Pleánala nor its Inspector had excess to or sight of the 1999 Dublin City Development Plan while deciding the appeal. He complains that consequently they could not have regard to its contents as they are required by law to do.

The Applicant refers to the fact the real tennis court building was designated “Tennis Court” in the relevant zoning map in the 1991 Dublin City Development Plan. The court is referred to in the 1999 Dublin City Development Plan as “Real Tennis Court”. The building was proposed for inclusion on List 1 of the Dublin City Development Plan, during the time when amendments to the 1998 Draft Plan were being processed. The Applicant complains that it was unlawfully downgraded to List 2 without public consultation. The Irish Real Tennis Association was aware of the proposal to amend the 1998 Draft Development Plan to include the real tennis court at List 1. The proposal to amend the Draft Plan was duly displayed between the dates of the 12th January to the 12th February, 1999 inclusive. However, the proposal to place the real tennis court on List 2 was never notified to the public, and the Irish Real Tennis Association was not aware of this proposal. Any submission by the owner of the real tennis court or by any other party, relating to the proposal to place it on List 2, was not placed on public display and would only have been accessible to members of the public if they knew, in fact, that a submission had been made. Had the Irish Real Tennis Association known of the proposal to amend the Draft Development Plan by placing the building on List 2, it would have vigorously opposed this counter proposal. The downgrading of the structure from List 1 to List 2 was a material alteration of the Draft Development Plan. The Applicant contends that had the real tennis court remained on List 1 and not been unlawfully removed, the planning authority would have been advised to refuse any application for planning permission except one which preserved the building as a real tennis court and An Bord Pleánala would have been obliged to have due regard to its listed status.

The Applicant states that the evidence available to the Inspector established beyond doubt that the proposed development would dramatically alter both the layout and the decoration of the real tennis court. He says consequently his conclusion that the proposed development would accorded with Article 5 of the Venice Charter is unreasonable and unlawful. Similarly it was complained that the Inspector’s conclusions in relation to Article 13 of the Venice Charter and Article 11 of the Granada Convention was not supported by any evidence at the oral hearing.

The Applicant complains that the Commissioners acted unlawfully when they proposed to develop the real tennis court in clear contravention of the wishes of Lord Iveagh. The Applicant says that An Bord Pleánala was obliged to have regard to the terms upon which the real tennis court was given to the State and in particular whether any restriction has been placed on its use. He points out that the Inspector and the Board came to a legal conclusion and decided that its use was unrestricted. The Applicant says that this conclusion is wrong in law. He complains further that the Board and the Inspector ought to have sought appropriate advice from either a public authority or from independent legal counsel as to whether the proposed development would contravene the use restriction on the building. In failing to do so he says that he is advised that the Board acted unlawfully.

Mr. Fergal MacCabe, an Architect and Town Planner has sworn an affidavit in which he states that he was engaged by the Commissioners in relation to the planning appeal the subject matter of these proceedings and attended the oral hearing conducted by the Senior Planning Inspector, Karl Kent on the 20th April, 1999. Having referred to the report of the Inspector, Mr. MacCabe says that he can confirm that the Dublin City Development Plan, 1999 as adopted includes the building, the subject matter of these proceedings, within List 2 at Item 756.

On behalf of the Respondent, Elizabeth Dolan, a Senior Administrative Officer has sworn an affidavit. She puts before the Court information and material in relation to what was before the Board when it made its determination herein. She points out that at the time the Board was considering the appeal in June 1999 it had not had made available to it by Dublin Corporation a copy of the 1999 Dublin City Development Plan as adopted. She says, however, that the Board did have regard to the provisions and contents of the 1999 Dublin City Development Plan as required by statute. The Board was advised by its Senior Inspector who conducted the appeal that the 1998 Draft Dublin City Development Plan was amended in January 1999 and the 1998 Plan with further amendments was adopted by Dublin Corporation on the 22nd March, 1999. She says that the Board had before it the submission made by Mr. Fergal MacCabe dated the 15th April, 1999 and made on behalf of the developer, the Commissioners. She points out that the submissions set out at paragraph 6.2 the listing of the subject structure under the 1999 Dublin City Development Plan as List 2. She points out that this was confirmed by the representatives of the third named Notice Party, Dublin Corporation at the oral hearing and the Inspector duly reported to the Board the structure’s List 2 status under the 1999 Dublin City Development Plan.

Elizabeth Dolan further submits that the Board does not have jurisdiction to determine whether there was any illegality in the manner in which Dublin Corporation adopted amendments to its Draft Development Plan. If the List 2 status of the subject building had not been set aside by any Court at the time the Board made the decision under challenge in these proceedings, it was correct in fact and in law to describe the structure at issue as a List 2 structure. She points out that the interior of the building, the subject matter of these proceedings, is not included in List 3 of the 1999 Dublin City Development Plan which refers to interior fixtures and features to be preserved. The fact that the interior of the building is not listed was reported by the Inspector to the Board and in this regard she exhibits the Inspector’s report. She says further that this fact appears from the submission of Mr. Fergal MacCabe previously referred to herein.

In the course of the hearing before me it was sought to be argued on behalf of the Applicant that the process of the adoption of the Dublin City Development Plan by Dublin Corporation was invalid. On behalf of Dublin Corporation objection was taken to a challenge being raised in these proceedings to the adoption of the Dublin City Development Plan. It was submitted that the Applicant could have sought to move in other proceedings either by way of Judicial Review or by Plenary action to challenge the Development Plan but that it was not open to do so in the context of these proceedings, that this Court in these proceedings should confine itself to the decision of the Board and should not enter into an adjudication of the process leading to the adoption of the Development Plan. This submission made on behalf of Dublin Corporation was supported by the Board which submitted that it is not involved in any way in the adoption of the Development Plan and that it is not for it to defend the manner in which the Development Plan was amended.

On behalf of the Commissioners, Counsel submitted that if the challenge to the Development Plan itself were successful that the Applicant could not succeed in any event as the pre-existing plan would stand where the property the subject matter of these proceedings was not designated as a listed building. He has further pointed out that the Applicant took no steps to challenge the Development Plan until the Board made its decision the subject matter of these proceedings.

Counsel on behalf of the Applicant submitted that as these proceedings were served on the 6th August, 1999, Dublin Corporation had notice of the intention of the Applicant since that time and only on the 5th December, 2000 did it raise this objection for the first time. He contends for a wider application of Section 82 (3)(A) and (B) to encompass the issues such as those now raised against the Development Plan. It was submitted before me that whether Dublin Corporation is referred to as a Notice Party or as a Respondent is immaterial as the definition of Party in Order 120 of the Rules includes a Notice Party. It is further submitted that as regards the Board the point sought to be raised in these proceedings was raised before it at the appeal; that if I upheld the objection made on behalf of Dublin Corporation that I should in my discretion enlarge the time for giving leave to the Applicant to seek leave by way of an application for Judicial Review of the decision of Dublin Corporation adopted in the Development Plan. Having considered the submissions I concluded that I should restrict this application to the matters before the Board and should not extend same to the validity of the adoption of the Dublin City Development Plan which if sought to be challenged could have formed the basis of a separate application which would not have concerned either the Board or the Commissioners. I pointed out that if the Applicant wished to take separate proceedings by way of Judicial Review against the adoption of the Development Plan that it was open to him to apply ex-parte to this Court to seek the leave of the Court to do so and that this Court would have to adjudicate upon this having regard to the provisions of Order 84 of the Rules and in particular Rule 21 thereof having regard in particular to the fact that nearly twenty one months had passed since the adoption of the Development Plan.

It was pointed out by Counsel for the Applicant that the Board has power under Section 82 to refer legal matters to the High Court. It was submitted that this was a proper matter for the Board to refer to the High Court particularly when the State was an Applicant and that the State could not proceed with the proposed development either by reference to the Deed of Transfer or the trust contended for by the Applicant. The Board should weigh the public interest as against the State’s ownership of the property and the Board cannot ignore the public interest being put to the Board which it is said it is being contravened or ignored by the State in this proposed development.

It was submitted by Counsel on behalf of the Applicant that portion of the affidavit of Elizabeth Dolan represented hearsay and should not be received in evidence by this Court. It was further submitted that at this stage of the proceedings the Court must not seek to resolve disputes as to fact but it must take the Applicant’s case at its highest. With regard to the Development Plan itself, it is submitted that the Board should have had it when it made its determination and should have had regard to it. It is submitted that it would be appropriate for a member of the Board to say that the Board had regard to this Development Plan in its determination. It is complained that the evidence of Ms. Dolan is second hand evidence.

It is submitted that as a matter of law the subject property was on List 1 in the Development Plan and that the Board determined the matter as being on List 2. It is submitted that the Board had a duty to comply with the provisions of the Act and the Board in the instant case did not have the Development Plan before it, therefore could not have complied with the terms of the Development Plan in its determination, that this complaint raised must be considered by this Court to be a substantial ground and that this Court is not entitled to say that the Applicant does not have substantial grounds merely because at a hearing of the action a Court in its discretion may refuse relief even if it finds that the Applicant has a point. Counsel for the Applicant has advanced to this Court authorities relating to the correct procedures in the adoption of a Draft Development Plan. It is again submitted that the change from List 1 to List 2 leading to the adoption of the Development Plan in 1999 was unlawful. It is pointed out that because the property appeared on List 2 that the Board was in a position to give permission with conditions attached and that the interior was not protected. As against this had it remained on the Draft Development Plan under List 1 it would have stayed on it but for the adoption of the plan with the illegality in its process.

Counsel submits in this regard that the Board based its decision on an error of law and in this regard it is submitted that the error in question was in concluding that the subject property was on List 2 in the 1999 Development Plan and that in the circumstances the Board had a duty to refer the matter to the High Court to resolve a question of law. It is submitted that the Board should have referred the matter to the High Court and should not have based its decision on an unlawful listing in the Development Plan.

It is submitted that it was not open to the Commissioners to apply for permission in respect of the development which they could not lawfully execute by reason of the title which they had; that the Board should not have engaged in a futile exercise to grant to a body which could not execute the development by reason of it being manifestly illegal or clearly illegal and that the Board should have stopped the appeal in its tracks and resolved the matter by reference to the statutory machinery available to it by referring the matter to the High Court.

With reference to the title of the Commissioners and the alleged illegality attending to same, it is submitted that the Deed of Transfer plainly says that the area hatched in orange can only be developed by University College Dublin. It is submitted by Counsel that if he is wrong in this submission that there were principles governing the donation resulting in a trust as to the future use of the property. It is submitted that there were restrictions arising from this trust or Deed of Transfer which inhibit the proposed development, that once the Board had notice of this submission that it ought not to have proceeded with the matter but that it should have invoked the statutory machinery. It is submitted that it is was a proper matter for the Board to make a decision to establish that the Applicant has sufficient title to execute the permission sought if it was granted.

It is submitted that in the instant case the State had a piece of property given to it for public use and that any restriction on its use was of a permanent nature; that there was an obligation on the Board to satisfy itself of the legal interest in the subject property and that this legal difficulty was clearly flagged before the Board. It is further submitted on behalf of the Applicant that the Irish Real Tennis Association is not a body of lawyers and while it made the Board aware of its belief that there was a legal restriction on the user of the property which would prevent the Applicant for planning permission from executing any permission that might be granted that the Board should have satisfied itself that there would either be no breach of trust or made it clear that a restriction on a user was such that it warranted further investigation. In these circumstances the Board should have satisfied itself that the Applicant for planning had sufficient interest to develop the property and secondly that it ought not to have granted planning permission resulting in a breach of trust. Counsel has submitted by reference to the decision in the case of Frescati Estates Ltd -v- Walker [1977] I.R.177 that an Applicant must be “able to assert sufficient legal interest to carry out the development” and “that the planning regulations require an Applicant to indicate the estate or interest in the property”.

It is submitted that the Irish Real Tennis Association raised sufficient doubt before the Board to require the Board to do more than it did in this case having regard to the authority in question. With regard to the terms of the grant of the property by Lord Iveagh to the State, it is submitted that it must be clear from the evidence before the Court that non legally qualified members of the Irish Real Tennis Association made a submission which touched upon the true wishes of the donor of the property, that this was sufficiently flagged to warrant investigation before the Board, that the proposed development constitutes a breach of trust and that the State was required to use its best endeavours to continue the use of the real tennis court as a tennis court for real tennis and that the State should not destroy the real tennis court or put it to such use as to prevent it from being used as a real tennis court.

It is submitted that the proposal in the instant case constitutes an unlawful contravention of the terms of the grant or trust, that the manner in which the property was granted to the State did not contemplate its use as a concert hall, that it was a condition of the grant that every effort would be used to continue the property in its use as a real tennis court and that the wish of Lord Iveagh as evidenced in the correspondence before this Court amounted to a condition that it be continued as a real tennis court or in the alternative that the transfer required the State to ensure that no active steps be taken to prevent its being used as a real tennis court. This at least entailed that it not be destroyed and turned into a concert hall. When the Court looks at the Deed of Transfer it is clear that the State cannot build a concert hall. Had the Board pursued the power available to it under Section 82(3) to refer the matter to the High Court that it would have been clear that they could not give planning permission for the proposal in question. It is submitted that in the instant case the Board proceeded to decide the appeal before it notwithstanding the error of law in question, clearly identified to it in the course of submissions on behalf of the Irish Real Tennis Association.

Counsel for the Applicant has referred to the authority of Gavin -v- The Criminal Injuries Compensation Board [1997] 1 IR 132 at p. 141 and in reliance upon this authority it is submitted that the evidence of Elizabeth Dolan constitutes hearsay and is inadmissible before this Court. It is submitted that this is evidence put forward in response to the contention that the Board did not have regard to the Development Plan. It is submitted that insofar as there is a conflict on the facts that this cannot be resolved at this stage of the proceedings and that this Court must take the case at its highest from the Applicant’s point of view.

Ms. Nuala Butler of Counsel made submissions on behalf of the Board. At the outset she pointed out that the Board accepted the bona fides of the Applicant and of the Irish Real Tennis Association. The issued before the Board was not to do with an application for the return of the court for use for real tennis. The Irish Real Tennis Association proposed dual use. The proposal before the Board entailed a considerable degree of conservation, albeit not returning the building for use as a real tennis court. The building had not been used as a real tennis court for many years. It was further pointed out in reference to the evidence from the point of view of the National Concert Hall the existing facilities of the National Concert Hall were inadequate. It was submitted that the building is not currently in the condition which its status merits. While the case as pleaded virtually in every regard is that the Board acted unreasonably or irrationally it is submitted that the Applicant must show substantial grounds to support this conclusion. The Applicant must show all the material before the Board before the Court could conclude that the Board acted unreasonably or irrationally.

Dealing with the submission made on behalf of the Applicant that the Board had no regard to the Dublin City Development Plan, reference has been made to Section 26 of the Act of 1963 to show that the Board may grant permission which constitutes a material contravention of the plan. The Applicant cannot show anything which the Board had regard to which was incorrect. The obligation to show substantial grounds is not satisfied by simply making the case that the Board did not have physical possession of the Development Plan on the date on which it made its determination. While the Board had a summary of the Development Plan it has not been suggested that this was incorrect. With regard to the listing status of the subject property the case being made by the Applicant must depend upon the contention that the Board did not have regard to the List. The contention made on behalf of the Applicant cannot constitute a substantial ground simply on the basis that the Board did not have physical possession of the Development Plan. The Applicant must show the Court that the Board did not have regard to the Development Plan. In fact the Board did have regard to it and was advised appropriately in relation to the status of the subject property in the Development Plan. Counsel referred this Court to the report of the Inspector to the Board and in particular page 5 thereof to show that the Board was appropriately advised in reference to the listing of the subject property under List 2 in the 1999 Development Plan. Further reference is made to page 16 of the report which notes a change in the Dublin City Development Plan in 1999 in relation to the listing of the subject property.

With regard to the allegation that the affidavit constitutes hearsay it is submitted that the instant case is entirely different to that arising in cases submitted by counsel for the Applicant where reference was made to an officer of the Board giving the thinking of the Board as opposed to stating what material was before the Board at any particular point in time. Furthermore, Elizabeth Dolan states that she is a Senior Administrative Officer of the Respondent Board and she makes the affidavit from facts within her own knowledge save where otherwise appears. Ms. Dolan furthermore exhibits the documents that were before the Board at the time of its considerations in this case. It is submitted accordingly that the objection raised is an entirely technical objection which is wrongly based on the supposition that the averment in the affidavit constitutes hearsay.

With regard to the issue of the list status, and whether the subject property was unlawfully on List 2 and should be on List 1, it is submitted that the complaint is one against Dublin Corporation and that the Board has no jurisdiction to investigate or rule upon the adoption or variation of the Development Plan. Any decision of the Board made on the basis that the structure should be recorded a status other than that on the Development Plan would itself be ultra vires .

With regard to the submission made on behalf of the Applicant that the Board should have invoked Section 82 subsection 3 and referred a point of law to the High Court it is submitted that the interpretation contended for on behalf of the Applicant is incorrect and if it was intended that the power in question was mandatory in certain circumstances the statute would have said so. The section does not go that far. It confers upon the Board a discretion to refer the matter to the High Court and goes no further than that. The Applicant cannot claim a substantial ground for contending that the Board erred as a matter of law in refusing to exercise a discretionary power in a particular manner. The provision in question provides a discretionary power on the Board. In the exercise of its discretion the Board would have to take into account whether the matter was an appropriate one for it to determine. Insofar as the Board was not concerned to determine whether the Development Plan was properly adopted no question of law arose necessitating a reference to the High Court. In the circumstances the Board in the instant case had a discretionary power; it was not obliged to exercise it and no error was present in its determination in failing to exercise this discretionary power by referring the matter to the High Court. Had separate proceedings been taken in relation to the Development Plan the appropriate proceedings would be taken in circumstances where the Respondent would be Dublin Corporation. If it were properly a planning matter it would be one capable of being cured by the Board. The Applicant failed to move promptly in relation to this matter and could have moved to the High Court at a time prior to the oral hearing in question. In the circumstances it would be difficult to argue that the Applicant would have been premature in making any application on any date after the 22nd day of March 1999.

With reference to the third issue namely that pertaining to the interpretation of the Development Plan and the consequences of the building being a List 2 building, it is complained that the Inspector wrongly refers in his report to the fact that the interior of the building was not listed and that this led to a wrong conclusion that the interior was not protected. The words ‘listed’ and ‘protected’ must be distinguished. While it is true that the interior of the building was not listed at no time was it stated that the interior was not protected. The Inspector quotes the policy of Dublin Corporation in its Development Plan in particular in regard to List 2 buildings and the scope of the protection. This can be seen at page 21 of the report under the heading ‘Development Plan - Conservation’. In the instant case the Inspector examined the scope of the listing and his report shows that the proposed development does not conflict with the policy as outlined in the Development Plan. On the evidence there is no question of the Inspector advising the Board that the interior of the building was not protected. In his report he says that the interior of the building was not listed. The technical point raised involves divorcing what the Inspector says at one portion of the report from the assessment section of the report. The Inspector’s report indicates that he was aware of the status of the interior of the building. At page 21 of his report he quotes as follows: “Section 7.3.1 goes on to state that the scope of the listings:-

“The planning authority has required that all the architectural elements relating to the previous use for real tennis shall be preserved so that reversion to the previous use can be achieved, if required at a future date. But, the effective established use of the premises is as a materials testing laboratory. This use has not contributed to the maintenance of the character of the structure. The use of the building for public purposes, together with the possible reversion to earlier use, would contribute positively to proper planning and development”.

“It is now proposed to convert the former tennis court to a recital hall, with seating capacity for 320 people. The facility includes ticket office, bar, practise room, sound and lighting facilities, a green room, and also the usual ancillary areas. The auditorium and stage are to be located in the main volume of the former tennis court. Also in this area are to be located the back stage facilities with changing rooms over. The original limestone floor is to be retained. However, for structural reasons including the damage suffered by the floor, it will be relaid on a concrete subfloor. The original limestone lining to the walls of the former court will also be preserved. The glazed roof will be retained, with the addition of a third layer of glass for acoustic reasons.”

In his report under the heading of ‘Assessment’ the Inspector dealt in detail with the Development Plan, the conservation philosophy and the quality of design in architectural terms of the proposal. The evidence showed that the architects had gone into considerable care in the preparation of the plan and it was clear that the Inspector accepted the architectural evidence before him. This is indicated at page 24 of the report in particular. The Inspector indicated that he did not agree with the criticism of the design voiced by the members of the Irish Real Tennis Association. It is submitted in conclusion on this part of the case that there was ample evidence before the Board having regard to the List 2 status of the building that the proposed changes would be appropriate.

With regard to the fourth issue relating to the change of use and the allegation that there was an illegal breach of trust or an illegal violation of the terms of the Deed of Transfer it is submitted on behalf of the Board that no part of the Deed of Transfer was before the Board. Accordingly the Board cannot be faulted on this issue. No party raised it and it is simply not relevant to the planning issues. The submission of the Applicant is premised on the requirement that an applicant for planning permission cross every legal hurdle before applying for planning permission and that there was a positive onus on the Board to show that the Applicant had done so before permission could be granted. It is submitted that this is not correct in law. By reference to the Frascatti case the decision shows that the Applicant had to have a sufficient estate or interest in the land to carry out the proposed development. Insofar as the instant case shows that the property in question was State property no issue in this regard arose. Any subsequent impediment does not go to planning but may well go to the issue as to whether an individual developer can act. Reference was made by counsel to the decision of the Supreme Court in the case of Keane -v- An Bord Pleanala [1998] 2 ILRM 241 at page 246 where Keane J. stated as follows:-

“In many cases, including the present, a person who has been granted planning permission will be unable to proceed with the development until he has obtained a relevant permission. This may arise either as a matter of public law or private law. For example, a company may apply for permission for the erection of a hotel including a bar and restaurant facilities. In terms of planning law, the grant of permission will authorise, not merely the construction of the building, but also its use as a hotel, restaurant and bar. As a matter of public law, however, that use cannot lawfully commence until such time as the necessary licenses are obtained under the codes dealing with the licensing of bars and restaurants. Similarly, a fire safety certificate may be required under the Building Control Act, 1990 before any development can commence. As a matter of private law, the company may find, after permission has been granted, that the objects in its memorandum do not authorise it to carry on such a business and consequential amendments may have to be effected. Where the land is lease hold there may be convenants affecting the proposed development which may require the consent of the lessor to be obtained.

The fact that the such permission or consents may be required before the development may lawfully commence does not preclude the planning authority, or An Bord Pleanála, from granting the permission, provided all the relevant requirements of the planning legislation are met. Section 26 (11) of the Local Government (Planning and Development) Act, 1963 acknowledges at least by implication that such further permissions under public or private law may be required by providing that “ a person shall not be entitled solely by reason of a permission or approvable under this section to carry out any development.”

“This does not amount to failing to take the absence of a licence or government objectives into account. Rather, the Respondent considered them and decided that enforcement of the Wireless Telegraphy Acts was not a matter to do with planning. Further it could not be said to be supporting an illegal activity. It could not assume that the owner of the land to which the planning permission attached would act illegally. It was provided by section 27 (1) of the Act, 1963 the grant of planning permission did not confer the right to own or operate a deflector system.”

Finally with reference to the Venice Charter and the Granada Convention and the allegation that the Inspector and the Board misinterpreted these, it is submitted that there is no material before the Court to support this contention. Insofar as it is alleged that the Board did not rely upon the Venice Charter or the Granada Convention it is submitted by counsel that there is no material before this Court to enable this Court to conclude that the Board misinterpreted either the Charter or the Convention or applied them incorrectly. Article 5 of the Charter was expressly referred to at page 22 of the report of the Inspector and refers to the fact that the conservation of monuments is always facilitated by making use of them for some socially useful purpose. It is submitted that in the instant case the Board had ample evidence that the proposed purpose was a socially useful purpose. At the end of page 23 of the report, having quoted Article 13 of the Venice Charter, the Inspector states

On behalf of the Commissioners Mr Galligan of counsel submitted that in the instant case the Applicant had sought to extend the case. It is pointed out that the lands in question are State owned. Counsel referred this Court in particular to the Statement of Grounds of the Applicant which had to be made within two months of the decision sought to be impugned in these proceedings. It is submitted by reference to the same that the Applicant is restricted to ‘use arguments’ in relation to the development. By reference to the deed conveying the property to the State it is submitted that it is free from all restrictions as to the user thereof. In reference to the proposed use of the subject premises it is submitted that there is nothing ‘manifestly illegal’ or ‘clearly illegal’ in using words to be found in Howard -v- The Commissioners of Public Works in Ireland [1994] 1 I.R. 101. It is submitted that the Applicant in the instant case puts forward a case on the barest of facts. Insofar as there is a suggestion of a restriction in use this has not been demonstrated by the Applicant. It is submitted that there is no restriction in the gift of the property in question to the State relating to the use of same. Insofar as the letter has been shown to indicate the wishes of Lord Iveagh this does not alter the terms of the gift of the property to the State itself.

Counsel referred to the fact that the Board was bound to have regard to the report of the Inspector in making its determination of the appeal before it. It is submitted that there were no issues raised in the grounds of the appeal to the Board that were not addressed by the Inspector in his report. With regard to the Development Plan it is submitted that the Applicant failed to bring any proceedings as against Dublin Corporation to quash a relevant portion of the Development Plan.

With regard to the alleged failure to have regard to the scope of the listing under List 2 of the Development Plan, it is submitted that the Applicant’s contention that the Inspector concluded that the interior of the building was not protected is not a substantial ground by reason of the fact that the Inspector expressly referred to the full scope of the listing under Section 7.3.1 of the Development Plan. Having referred to the policy as set out at paragraph CA3 of the Development Plan it is submitted that the alleged failure by the Respondent to protect the building as a real tennis court does not amount to a “substantial ground”. It is submitted that the Inspector was entitled to conclude as he did that the proposed development did not generally conflict with the policy statement contained at paragraph 7.3.1 of the Development Plan. It was pointed out that the decision of the Respondent was based upon the report of the Inspector and it is submitted accordingly that it is absolutely clear that the Respondent had regard to the relevant provisions of the Development Plan insofar as they related to the interior of the form of the building in question.

With reference to the Granada Convention and the Venice Charter it was submitted that the Applicant’s contention that the conclusion of the Respondent and its Inspector that the proposed development accorded with the relevant provisions of the convention and the charter is unreasonable, does not amount to a substantial ground by reason of the fact that there was evidence on the basis of which the Inspector and the Respondent could reasonably have reached this conclusion. With regard to whether the proposed development was reversible it is submitted that there was evidence on the basis of which the Respondent was entitled to conclude that it was reversible. It is submitted that this was the material consideration relevant to proper planning and development which the Respondent was entitled to take into account.

In reply to the submissions made by Counsel for the Respondent and the Notice Party, Mr. MacEochaigh submitted that the evidence of Ms. Dolan constituted hearsay and there was no basis shown upon which it could be said that the Board did have regard to the Development Plan. It is submitted that whether the Board failed to have regard to the Development Plan is a matter for the next stage of the proceedings on the basis that this Court should in the circumstances grant leave to the Applicant. Counsel asks retorically, “Is it possible to say that the Board had regard to a document of which no one had a copy?” It is submitted that what the Board had to have regard to was the plan as a whole. It is submitted that the reference to the interior of the building not being listed is evidence that the Board did not have regard to the plan. While it is accepted that the Board had no jurisdiction to decide an issue of legality or illegality in the adoption of the Development Plan, it is submitted that in the circumstances the Board had a duty to refer the matter to the High Court. It is submitted that once the public authority in the form of the Board was notified of the alleged illegality that it is disingenuous for the parties to say that the Applicant should have sought Judicial Review of the Development Plan.

Dealing with the question of the legal state or interest, counsel submits that there are no circumstances in which the Commissioners will be able to execute the planning permission by reference to the trust regarding the use of the lands as evidenced by the letters exhibited before the Court and referred to An Bord Pleanála. Counsel submits that a trust exists by reference to the Deed of Transfer which has been exhibited before this Court. It is submitted that the legal interest was not as stated by Ms. Butler. Counsel refers by reference to the case of Frescati Estates -v- Walker that the Commissioners do not have a sufficient interest to carry out the development proposed in this case.

In the first place I am satisfied that the Applicant has failed in relation to the first ground of relief namely that the Board did not have regard to the provisions of the Development Plan in determining the appeal in issue. Having regard to the accepted fact that the subject property appears in the Development Plan for 1999 under List 2 and further, having regard to my earlier ruling that it was not open in these proceedings to challenge the adoption of the Development Plan, I am satisfied that the Applicant has failed to adduce to this Court any material to substantiate the ground in this regard.

With regard to the second ground advanced on behalf of the Applicant, I am also satisfied that this also fails insofar as it is linked to the first ground advanced. This related to a contention on the part of the Applicant that the structure at issue was not on List 2 of the Development as it had been unlawfully removed from List 1 and placed on List 2. I am satisfied that insofar as this ground acknowledges the fact that the property had been placed on List 2 and insofar as the Board in reaching its determination did so on the basis that the subject property was in fact on List 2 the Board acted in circumstances where the Applicant has failed to advance any substantial grounds in support of this contention. Insofar as I have held that the Board was not seized of any jurisdiction to determine the legality or otherwise of the adoption by Dublin Corporation of its Development Plan, I am satisfied that this ground relied upon by the Applicant is one in which he has failed manifestly to advance any substantial grounds. I am also satisfied in this regard that in the circumstances the Board had no obligation to refer any issue of law to the High Court and that if it was the wish of the Applicant to challenge the adoption of the Development Plan that it was incumbent upon him to do so in discreet proceedings before the High Court and that no obligation lay upon the Board in light of the mere assertion made by or on behalf of the Applicant at the hearing before the Board.

With regard to the suggestion that the Board and its Inspector unlawfully concluded that the interior of the building was not listed, notwithstanding the fact that the Inspector had “detected the relevant provision of the Development Plan which made it clear that all of the building was listed for protection”, I am satisfied that this ground is also one on which the Applicant has failed to advance any substantial grounds. The property in question being on List 2 and not on List 1, the interior of the property was not listed and therefore the Inspector correctly concluded in this regard that the interior was not listed. Having so concluded the Inspector, contrary to the assertion made in this regard, did not conclude that because the interior of the building was not listed that it was not protected. He noted that the proposal was something that was not precluded by the listing and advised, in relation to the proposal, to An Bord Pleánala.

With regard to the further ground that the conclusions of the Board and its Inspector that the proposal in question accorded with Article 11 of the Granada Convention and Articles 5 and 9 and 13 of the Venice Charter were such that they acted irrationally or unreasonably or otherwise unlawfully, I am furthermore satisfied, on the evidence before me, that the Applicant has failed to advance any substantial grounds in support of the contention that there was any irrationality or want of reasonableness on the part of the Inspector or that the Inspector or the Board acted unlawfully in the conclusions which they reached in this regard.

With regard to the circumstances of the subject property being granted to the State, it was submitted that An Bord Pleánala and the Commissioners were obliged to achieve the wishes of the donor and were obliged to do nothing which would frustrate or dishonour the wishes of the donor. I am satisfied on the basis of the evidence before me that no aspect of the grant of the property in question to the State in any way precluded the proposed use herein and at best the Applicant relied upon a letter written in or about the time of the grant to the then Taoiseach Mr. DeValera. I am satisfied that this letter only represented an expression of will on the part of the donor but in no way formed part of the grant and had no legal force. Furthermore this Court was furnished with a copy of the conveyance of the subject property by Lord Iveagh to the State which is contained in an indenture of the 7th December, 1939 which showed that the subject property was vested in the Minister for Finance “free from all restrictions as to the user thereof”. Accordingly I am satisfied that this ground is also one where the Applicant’s submissions are in the teeth of the terms of the Deed of Indenture and in respect of which he has failed to demonstrate any substantial grounds whatsoever. Furthermore it must be added that the Applicant advanced no material before the Board which even raised the issue as to any restriction as the use other than a mere assertion on his part in reference to a letter written to the then Taoiseach.

The fifth ground advanced by the Applicant is that the decision of the Board is unreasonable and unlawful in as much as it is based on the conclusion of the Board’s Inspector and of the Board that the proposed development is reversible and that such reversibility is a form of protection for the real tennis court. I am satisfied that the nature of the report put forward by the Inspector and the decision of the Board were such that it was clear as to the limitation in relation to the changes to the interior of the building which were permitted in the proposal. Insofar as this ensures the possibility of reversibility I am satisfied that it was one which both the Inspector and the Board were clearly aware of and which they were entitled to recommend to the Board and adopt respectively. I am furthermore satisfied that the applicant has failed to show any substantial grounds that the proposal in question conflicts with the listed category of the building.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Neville v. Bord Pleanala [2001] IEHC 119 (31st July, 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/119.html Cite as: [2001] IEHC 119

High Court of Ireland Decisions

Neville v. Bord Pleanala [2001] IEHC 119 (31st July, 2001)