BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Goss & ors -v- O'Toole & ors [2013] IEHC 570 (17 December 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H570.html Cite as: [2013] IEHC 570 |
||
[New search] [Help]
Judgment Title: Goss & ors -v- O'Toole & ors Neutral Citation: [2013] IEHC 570 High Court Record Number: 2012 432 MCA Date of Delivery: 17/12/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2013] IEHC 570 THE HIGH COURT [2012 No. 432 MCA] BETWEEN CONCEPTA GOSS, SEAN CUNNIFFE, STEPHEN LANE, LUKE FLANAGAN, FINIAN MC GRATH AND DANIEL TRAYERS APPLICANTS AND
JOSEPH O’TOOLE, HELEN O’TOOLE AND O.T. INVESTMENTS LIMITED RESPONDENTS JUDGMENT of Mr. Justice Hedigan delivered on the 17th day of December 2013 Application
(ii) An order restraining the respondents from carrying out any development on the lands owned by Galway County Council at Town Parks, Tuam; (iii) An order restraining the respondents from using/continuing to use the lands and/or any structure at Town Parks as a commercial split level car park; (iv) An order restraining the respondents from having vehicular use and access to the service road that links Bishop Street, Tuam with the inner relief road at Tuam Town; (v) An order directing the respondents to remove an unauthorised split level car park and all unauthorized ancillary structures; (vi) An order compelling the respondents to remove the unauthorized service road that links Bishop Street, Tuam, with the inner relief road and all unauthorised structures erected thereon; (vii) An order directing the respondents to restore the lands within 30 days of the date of this order to their condition before the unauthorised development; (vii) An order directing the respondents to pay to the applicants all costs. Parties Background 3.2 On 10th August, 2007, the respondents applied to Galway County Council for planning permission for a mixed use development of an area of 29,540m2 to be located on 3.6 hectares at Town Parks, Tuam. This application was accompanied by an Environmental Impact Statement (hereinafter “EIS”) and an Environmental Impact Assessment (hereinafter “EIA”). Permission was granted which was appealed to An Bord Pleanála by Tuam Tennis Club. An Bord Pleanála granted permission subject to 27 conditions on 1st April, 2010. 3.3 The development was to be constructed in Tuam town centre and was to include a pedestrianised landscaped plaza, hotel, nursing home and several commercial and residential units. It was also to include a two level underground car park. 3.4 On 9th December, 2011, the respondents began works on the lands, being the construction of a large commercial split-level car park and the erection of trolley bays, signage and lighting. The residents of Tuam understood that the respondents were embarking on the first phase of the mixed use development the subject of their application for planning permission. However, on 11th January, 2012, the first named respondent announced via “The Tuam Herald” that he had put the mixed use development on hold. Ultimately he did not proceed with it and instead proceeded to build the current development for which no planning permission was granted. 3.5 During the course of pre-planning discussions with Galway County Council in respect of the respondents’ proposed project, the respondents were informed by the council that their application for planning permission should take account of an inner relief road which the council intended to construct and which it was hoped would relieve traffic congestion in Tuam. The respondents’ development was to be accessed by a section of that inner relief road. The Council did not have sufficient funds to build this road and it came to an agreement with the respondents whereby the respondents would, at no charge, provide it with the land on which to build the road and also fund most of its construction. This formed a condition of the planning permission granted to the respondents. The Council, in exchange, agreed to transfer to the respondents the land on which the public car park in Tuam stood as well as a portion of the public right of way which ran on the Palace Road and which locals used to access the swimming pool and local school. 3.6 On 23rd May, 2011, the members of Galway County Council voted to transfer certain existing car park lands to the respondent under s. 183 of the Local Government Act 2001, and voted to extinguish the public right of way on the Palace Road pursuant to s. 73 of the Roads Act 1993 (as amended). An issue regarding the validity of this resolution would later lead to these matters being voted on again on 26th November 2012. 3.7 In July 2012, the Council served a notice of intention to extinguish the public right of way pursuant to s. 73 of the Roads Act 1993. 3.8 In the meantime, construction of the split-level car park took place with removal of the right of way on the Palace Road. As a consequence, locals had to cross what was now a car park to get to a public park known as the Palace Grounds. In March, 2012, when the car park had been completed Tuam town residents, including the first to third named applicants raised concerns that the car park was a dangerous means of accessing the nearby school and the other amenities of the Palace Grounds. 3.9 In response to these concerns in July 2012, the respondents constructed a service road through the car park linking Bishop Street with the section of the inner relief road which provides access to the new split level car park. No planning permission was sought for this road at the time of construction. 3.10 Locals were still concerned about the safety of the route through the car park and service road prompting Galway County Council to commission a Road Safety Audit in October 2012, which recommended a number of changes to enhance safety. The respondents are not in a position to affect these changes until they obtain planning permission. 3.11 Following complaints to it by the applicants in respect of the unauthorised nature of the development, Galway County Council issued a warning letter to the respondents on 22nd August, 2012, and enforcement notices were served on the respondents on 16th October, 2012. The unauthorised development set out relates to:-
2. The unauthorised creation of a service road (linking Bishop Street and the Inner Relief Road). 3.12 An application for retention permission for the unauthorised development and permission for further development in respect of the required safety features was submitted to the council by Patrick Newell, architect, on behalf of the respondents, on 22nd November, 2012. Owing to the submissions made and safety concerns surrounding the development that application was withdrawn and another was lodged on 23rd January 2013.This was then withdrawn owing to the threat of legal proceedings and a fresh application bearing reference No. 13/644 was lodged on 19th June 2013. 3.13 Notice of intention to grant permission issued from the Council on 3rd October, 2013. The applicants intend to appeal the granting of the planning permission to the respondents and to seek restoration as far as is practicable of the Palace Road to its condition before the unauthorised development took place. Applicants’ Submissions Mr. Lane explained that the respondents, in an attempt to deal with this issue, constructed an unauthorised service road through the car park area which links Bishop Street with the inner relief road. He noted in evidence that in doing so the respondents constructed narrow footpaths of approximately 1m in width. Mr Lane stated that the recommended width is 1.8 m and that the existing paths are so narrow as to be virtually unusable. Railings were also erected along the footpath and Mr. Lane is of the view that these railings appear to steer children onto the road rather than towards the footpaths. Mr. Cunniffe one of the applicants, who is also a member of Galway County Council and a resident of Tuam, indicated in evidence that he agreed with Mr Lane’s opinion regarding the danger posed by the road. Another applicant, Ms Goss, gave evidence that the construction of the car park and the removal of the right of way caused chaos among users, particularly school children who were swarming around the area. Ms. Goss did agree with counsel for the respondent that school children also cross the cathedral car park from St.Jarlath’s College. However she indicated that this is safer than the service road since most of the cars in that car park are parked there for the day which means there is less movement and therefore it does not pose the same danger as the respondent’s car park. This is because the respondent’s car park is a supermarket car park with constant moving of traffic throughout the day. She also indicated that the safety audit commissioned by the county council has not alleviated her concerns about safety since not all the children stick to the route identified in the audit. Requirement for an EIA The applicants’ expert witness, architect Mr Paul Mannion, in his affidavit referred to the deleterious effect of these changes on the town stating that:-
The development is located beside the river Nanny. The applicant’s planning consultant, Mr. Eamon Collins engineer, expresses concern that the river is vulnerable to the impacts of oil and fuel surface spill emissions from the car park given its proximity to the car park and that no oil interceptor has been installed. Moreover, the location where development has occurred is within a zone of archaeological potential and within the curtilage of various protected structures. The applicants contend that the respondents have breached planning law in undertaking development in such an area. They argue that the development covers an area of 2.444 Ha and therefore exceeds the threshold that requires a proposed development to be assessed for urban development as set out in Schedule 5 Part 2 (10)(b)(iv) of the Planning and Development Regulations 2001 which covers urban development of an area greater than 2 hectares in the case of a business district. All of this means that had the respondents applied for planning permission before construction, the planning authority would have been required to determine if an EIA or an EIS was required. Neither assessment was carried out and the respondents instead went ahead with the unauthorised development. They now seek retention planning permission for a reduced area of the development site from 2.444 Ha to 1.358 Ha. This reduction was achieved by simply excluding two further unauthorised car parks also serving the supermarket from the current retention application. These two areas had been included in two previous applications. They continue to exist and are used as car parks. It is argued that retention planning permission is not available as a remedy to the respondents and the council is precluded from considering any application for same under s. 23(12) of the Planning and Development Act 2010, as amended by s. 23(12) of the Planning and Development (Amendment) Act 2010 which provides:-
(a) an environmental impact assessment, (b) a determination as to whether an environmental impact assessment is required, or (c) an appropriate assessment.” The applicants wrote to the Council requesting that it provide reasons as to why the application for retention permission was being considered. The response received by letter of 18th January, 2013, stated that the Council’s planning department did not consider the unauthorised development an “urban development” and that the car park had less than the threshold 400 car parking spaces (although it exceeded the 2 Ha threshold) and therefore the development did not fall into either relevant category in Schedule 5 Part 2 10(b) of the Planning and Development Regulations 2001. The applicants do not agree with the Council’s rationale given that the development is located in a town centre which is zoned commercial The applicants also rely on the decision of the European Court of Justice in Commission v. Ireland (Case 215/06) where it found Ireland to be in breach of Articles 1 and 2 of Directive 85/337 EEC as amended due to the unrestricted availability of retention planning permission for unauthorised developments for which an EIA/NIA was required but not carried out. It found at para. 57:-
The applicants reject any assertion by the respondents that the granting to them of the relief they seek, namely removal of the unauthorised car park and restoration of the right of way, could cause the respondents to suffer hardship. The applicants contend that since March, 2012, the respondents have had the benefit of a car park for which no planning permission has been granted. They further contend that they had ample car parking for their customers before the unauthorised development and will continue to have ample parking when the unauthorised car park is removed- thus any claim of hardship is unfounded. Moreover, it is asserted that the respondents are more than likely obtaining significant commercial benefit from their unauthorised activities. Although currently there is no charge for use of the car park it appears that the respondents do intend to operate the car park as a commercial enterprise quite separate from Supervalu. This is evident from the fact that the respondents have engaged APCOA, a parking management company, to manage the commercial aspect of the split level car park. APCOA signs have appeared in the car park together with wheel clamping warning notices. Ticket dispensing machines have also been erected. It is therefore argued that these are not merely temporary trivial works and the respondents from the outset intended to make money from the unauthorised car park as a separate commercial entity to the supermarket. It is contended that the respondents will continue to gain from the breaches of planning law if the reliefs sought by the applicants are not granted, therefore the court should grant the reliefs sought. 4.4 Respondents have breached planning laws The development carried out is not one which is exempted under s.4 (1) of the Planning and Development Act 2000, and therefore is unauthorised. The respondents made a commercial decision not to avail of the planning permission granted for the mixed use plaza development. The applicants argue that there was no reason for the respondents not to seek fresh planning permission for the split level car park, ancillary structures and the building of the service road but they chose not to do so. The section of the inner relief road constructed deviates significantly from the plans submitted to An Bord Pleanála. The permission for the mixed use development was granted on condition that the respondents, among other things, created a tree-lined walkway by the river Nanny. They have done so. However, the road is closer to the river than envisaged. This spoils it as a riverside walk. Moreover, neither the plans for the proposed section of the inner relief road under the part 8 procedure or the plans submitted as part of the application for planning permission envisaged that the road be opened by constructing an access road onto the respondents’ site at the point where the service road meets the section of the inner relief road. The respondent claims that the access was created by Galway County Council. The applicants argue that even if this is the case it does not change the fact that it is unauthorised development. The applicants refute the first named respondent’s contention that he did not intend to flout planning law. They point to his past planning transgressions as evidence that this is not the case. Moreover, they assert that if he had wished to observe planning laws, he would have engaged an expert to prepare a planning application for the unauthorised car park before it was constructed as opposed to retrospectively. The respondents rely on Morris v. Garvey [1983] 1 I.R. 319, to argue that the court should grant the relief they seek. That case related to unauthorised development of a dwelling which the court ordered be demolished under s. 27(2) of the Local Government(Planning and development )Act 1976, which is the precursor of s. 160 of the Planning and Development Act 2000. At p. 324, Henchy J. stated in respect of s. 27(2):-
The applicants do not agree with the respondents’ assertion that the development is an amenity for the town. The notice to grant permission of 3rd October, 2013, requires works to be carried out to meet traffic safety issues addressed in the traffic audit and also requires the removal of the existing covered walkways and trolley bay coverings in the interest of the setting of a protected structure. This is strongly indicative that the unauthorised development has actually had negative traffic and conservation impacts. Mr. Cunniffe in evidence indicated that the road does not take any traffic away from the centre of Tuam. He believes that traffic has not been reduced but is merely deviating to other parts of the town. Indeed, Mr. Cunniffe also gave evidence that he does not believe that the right of way has been properly extinguished. He accepts that the County Council voted to extinguish the right of way on 26th November, 2012, but contends that any extinguishment was only to come into effect when an alternative right of way was put in place. This is evident from the minutes of the meeting on 26th which stated at p. 10 that:-
Given the above, the applicants contend that the court should grant them the reliefs sought and they point to Wicklow County Council v. Forest Fencing Limited Trading as Abwood Homes and George Smullen [2007] IEHC 242, wherein Charleton J. held that the court has a duty to uphold the principle of proper planning and development under clear statutory rules and that is its starting point in any proceedings. 4.5 Delay on the part of the applicants The applicants deny that they have delayed in this matter. Ms. Goss gave evidence that the applicants only discovered that the development was unauthorised in July 2012. They argue that they gave the respondents a chance to comply with the requirements of the enforcement notice issued on 16th October 2012, and when they failed to act within the requisite 30 days they then initiated proceedings on 26th November, 2012. 4.6 Section 162 of the Planning and Development Act Section 162(3) of the Planning and Development Act 2000 provides:-
They concede that a court could, however, place a stay on the granting of the injunction sought by the applicants for a period of time on the grounds that an application for retention permission has been made or on hardship grounds. However, the applicants argue that the court’s discretion in this regard is constrained, in that it would require the respondents to show exceptional circumstances in order to exercise its discretion in the respondents’ favour. They rely upon the same dictum of Henchy J. cited above in Morris v. Garvey [1983] 1 I.R. 319, at paragraph 4.4. Moreover, the applicants point out, Morris involved the breach of planning permission on the part of the respondent. The unauthorised development the subject matter of these proceedings however has no planning permission whatsoever. The respondents thus are in breach of the requirement to seek permission for the unauthorised development as well as the construction of the unauthorised development. This breach is therefore of a more serious nature. Also, there are no exceptional circumstances such as those enumerated in Morris that can permit this Court to exercise its discretion to refuse an injunction. The respondents it is argued commissioned the construction of the car park by engaging Coffey Construction Ltd. to carry out the works. It is therefore difficult for them to argue genuine mistake in the construction of the unauthorised development. The applicants further rely on The Right Honourable The Lord Mayor, Alderman and Burgesses of Dublin v. O’Dwyer Brothers (Mount Street) Limited [1997] IEHC 77, to argue that the court should not grant a stay. In that case, Kelly J. refused to grant a stay on the injunctive relief sought by the applicants since the respondents had been notified well in advance of the applicants’ complaints. Similarly, the applicants argue, from March 2012, up to the present, the respondent has made use of the unauthorised car park although he had been requested as early as December 2012, to cease use of same. It is argued that the court should take this into account when deciding whether to grant the reliefs sought. The applicants note that the right of way on the Palace Road was removed before the county council managerial order for removal of same was granted. They believe that the conduct of the respondents in this regard should not be ignored by the court when considering the appropriate orders to be made. Likewise, it is contended, the respondents’ previous record of carrying out unauthorised developments and regularising them by later retention permissions also justifies the court in refusing to stay any order granting the reliefs sought. If An Bord Pleanála grants retention then any injunction granted by this Court can be discharged as the applicant will be compliant with planning laws. If An Bord Pleanála do not grant retention permission the injunction can remain in place obviating the necessity for the applicants to reapply to the court for relief further down the line. The applicants therefore submit that the court should grant the reliefs sought so that the respondents be ordered to cease use of the unauthorised split level car park and restore same to its previous condition unless and until authorised to make lawful use of same under the Planning Code. Respondents’ Submissions The first named respondent is 80 years of age. His wife is 79, of ill-health and resides in a nursing home. The respondent has been involved in business in Tuam for over 45 years and employs 165 people. He is anxious that the centre of Tuam continues to prosper. To this end, in addition to transferring 0.4 hectares of land to the council in return for an adjoining 0.2213 of a hectare, he also agreed to give €1.1 million to the Council to enable it to build the inner relief road and of that sum €977, 000 has been paid to date. The first named respondent believes that the development has improved the overall appearance of the area. He believes that public access between Bishop Street and Palace Fields, the presentation school and the swimming pool has not been interfered with and that the inner relief road has alleviated traffic and has enhanced overall access to the town centre. The first named respondent argues that many residents of Tuam felt that he was doing a service to the town by developing the area and he points to the minutes of the council meeting of 26th November, 2012, where Councillor Mannion stated:-
He argues that it was not he but Galway County Council who carried out not only the construction of the road but construction of the pedestrian crossing over same and also built footpaths and a section of the road leading from the relief road into the respondent’s car park area. Safety He contends that he has done all he can to date to address any safety concerns the applicants may have and notes that the applicants have not averred to the fact that further works have been carried out by him in this regard following a meeting which took place on 17th May, 2012, between the respondents’ planning consultant Mr. McCarthy, school principals in the area and some of the applicants. Following this meeting, the respondents built a service road through the car park. They are of the view that the old right of way was not as safe as the service road since now there are speed restrictions in place whereas previously there were none. Moreover, safety features including marked pedestrian crossings, tunnels, safety railings, signs and lighting have been installed across the car park to ensure safety of pedestrians. Students are easily guided by teachers as they traverse the footpath across the respondent’s premises. The respondents point to the oral evidence of Mr. Lane, who when asked whether he thought the route through the respondent’s car park was the safest route to the swimming pool, agreed that it is at the moment. The respondents reject that there is any risk of an accident occurring in the car park and argues that the applicants are well aware that no accidents have occurred since works were completed in March 2012. Mr. Patrick Newell, engineer, who was engaged by the respondents in July 2012, to prepare revised plans for the car park and to prepare the planning permission application adduced evidence that the works carried out to date by the respondent have greatly improved matters from a safety point of view. He also gave evidence that safety fears surrounding the crossing of children through the car park are unfounded and that the footpath railings do function to keep the children on the footpath and off the road. He is of the opinion that the premises as constructed is safe and indeed far safer than that which pertained prior to the demolishing of the old public right of way, which, he says, was a roadway deficient in lighting, with only one footpath and none of the safety features that now exist. While accepting that wider footpaths would be more prudent he rejected Mr. Lane’s contention that the footpaths are currently virtually unusable and notes that the footpaths constructed by the respondents are the same width as the footpaths constructed by the council at the entrance to the car park (being 1.2m). He informed the court that the current planning application by the respondents incorporates a proposal to widen the paths to 2m as recommended by the RPS safety audit. Children from various schools traverse the cathedral car park which is used as a pick up point by buses travelling to Galway on a daily basis. This is despite the fact that this car park, unlike the respondents’, has no railings or footpaths on it but the applicants have not raised concerns in this regard. Ms. Goss in evidence stated that she did not believe that the cathedral car park was dangerous although she accepted that she was not qualified to give a professional opinion. The respondents are surprised then that she should feel that she is qualified to give an opinion on the safety of the development the subject matter of these proceedings. As referred to above, an independent safety audit was commissioned by Galway County Council in relation to the safety issues. The Council engaged a firm, RPS consultants, to carry out a stage 3 road safety audit in respect of the access road between the inner relief road and Bishop Street. The additional relatively minor works identified as being necessary by this audit are incorporated in the respondents’ planning application. The respondents cannot yet carry out these works but when planning permission is granted they argue, the works will be done without delay. They find it curious that the decision to grant permission which encompasses the improvements recommended in the safety audit will be appealed to An Bord Pleanála by the applicants since its sole aim is to enhance the safety of the development. Delay They are of the view that the court, when deciding whether or not to grant relief, should take into account this delay. They rely on the court’s judgment in Smyth v. Dan Morrissey Ireland Ltd. [2012] IEHC 14, where he refused to grant the relief sought as the applicant had failed to act promptly. The absence of planning permission The respondents lodged an application for retention permission in November 2012, and when the first named respondent became aware of the safety issues raised by the safety audit, he withdrew this application on 18th January, 2012 and submitted a revised application on 23rd January. He also commissioned an Architectural Impact Assessment which was submitted with the retention application. He believes this planning application addresses all of the issues relating to nearby protected structures He argues that the respondents did not give him adequate time to rectify matters before issuing proceedings. He notes that by letter dated 16th November, 2012, the applicants’ solicitors sought an undertaking from him within seven days of the date of the letter to carry out works within 30 days, failing which, injunction proceedings would be sought. The respondent only received that letter on 20th November, 2012. On 26th November, 2012, the applicants’ notice of motion issued and Ms. Goss swore her affidavit, but made no mention of the vote by the members of Galway County Council to extinguish the right of way under s. 73 of the Roads Act 1993, which was to take place on that day- despite stating under cross-examination that she had been aware that the meeting was taking place then. Mr. Cunniffe knew that the Council had voted to extinguish the right of way on 26th November, 2012, and agreed to transfer it to the respondents. Nevertheless, on 27th November, he swore his affidavit and did not make reference to the vote taken the day before. The respondents believe the court should take into account this behaviour of the applicants and rely on Leen v. Aer Rianta cpt [2003] 4 IR 394, wherein at p. 409 Mc Kechnie J. referring to a principal enunciated by Henchy J. in Morris v Garvey stated that:
a) the conduct, position and personal circumstances of the applicant…..” Moreover, the respondents do not believe that they are guilty of destroying the surrounding areas as alleged by the applicants. Mr. David Slattery, conservation architect, who drew up a report for the respondents, visited the site with Mr. Gus Mc Carthy on 23rd May, 2013. In his observations on the works undertaken, he states that the former Palace has undergone radical alteration from the 1960s and has lost many of its significant features. He notes that there is no area including the area of the car park that could be considered as being in a defined area of curtilage. He is of the opinion that it would be difficult to consider that isolated sections of the former demesne and garden wall lie within the curtilage of the Bishop’s Palace. He states:-
The court’s discretion It is submitted that in the overall context of the entire development carried out by the respondents, any breach of the Planning Code that has occurred is not so serious or grave as to require granting the orders sought by the applicants. The respondents rely on the judgment of Hogan J. in The County Council of the County of Wicklow v Katie (otherwise Catherine) Fortune 2012 IEHC 406, where he stated at para. 28:-
DECISION 6.2 There is a preliminary objection made by the respondents on the grounds of the applicants’ alleged delay. I accept that the applicants only discovered the development was unauthorised in July 2012. I think it was reasonable for them to await the outcome of the enforcement notices served on 16th October, 2012. Thus, when they moved on 26th November, 2012, they moved, in my view, within a reasonable time. There was then and remains today a substantial measure of confusion as to the planning status of the entire area. It is no surprise the applicants felt constrained to wait until at least some measure of clarity emerged with the failure of the respondents to comply with the enforcement notice. This preliminary objection is rejected. 6.3 The applicants argue that the court should make an order pursuant to s. 160 of the Planning and Development Act 2000. This section provides as follows:
(a) that the unauthorised development is not carried out or continued; (b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development; (c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject. (2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.” 6.5 The principles that should guide the court in dealing with this type of application were set out by Henchy J. in Morris v. Garvey [1983] 1 I.R. 319, at p. 324, where he stated:
This passage was approved by Clarke J. in Cork County Council v. Slattery Precast Concrete Ltd. & Ors. [2008] IEHC 290, where he stated at para. 12.1:
6.6 Thus, the following principles are clear from the decisions of the Irish courts and the European Court of Justice. The same principles that apply to the court’s exercise of its discretion to refrain from making whatever orders are necessary to ensure compliance with planning permission (or the law, where there is none) should apply where retention is sought. There must be exceptional circumstances present such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship or something of equivalent force before the planning authorities should grant retention. The point of departure for the authorities in considering a retention application is that the development is unlawful and should not be permitted, save for the presence of the above exceptional circumstances. Retention permission should be an exceptional decision. Where such exceptional reasons are identified as present and sufficient, the authorities must ensure that any retention permission which is granted does not offer the applicant the opportunity to circumvent any aspect of the planning laws. 6.7 As things now stand, locals and children cross the unauthorised car park en route north from Bishop Street. Because of narrow sidewalks on the new service road, together with other safety concerns, the safest route, it is agreed, is through the new car park. However, unlike the nearby all-day car park in the grounds of St. Jarlath’s, this supermarket car park is busy all day with cars coming and going in the normal course of operation of such a car park. Mr. Lane, who is a Principal of St. Patrick’s Boys School, gave evidence which I found convincing and disturbing, that children were drawn to crossing the car park in place of their old route. This he considered to be dangerous and I accept his judgment on that. All of this alteration, it must be noted, has come about without planning permission. It is impossible to accept the first named respondent’s contention that all the unauthorised work was unintentionally in breach of the planning laws. He cannot but have been aware that the works he embarked upon in December 2011 were unauthorised. He himself acknowledged in the ‘Tuam Herald’ in January 2012, that the project for which he had received planning permission in 2010 was not going ahead. I do not believe he was in any doubt but that he could not proceed in a piecemeal fashion. Mr. O’Toole has considerable experience of the planning laws. He appears, in fact, to have established a particular modus operandi. He has an extraordinary planning history. He has a pattern of constructing unauthorised developments and subsequently seeking retention. This history is set out by the applicant, Ms. Connie Goss, in her affidavit of 22nd March, 2012, at paras. 9 and 22 in considerable detail. It is a litany of unauthorised development followed by retention permission repeatedly given. In his replying affidavit of 19th June, 2013, to this affidavit of Ms. Goss, Mr. O’Toole, whilst responding to other matters, passes over all these allegations without any reference. Mr. Gus McCarthy, in his affidavit sworn on 20th June, 2013, simply states that any unauthorised developments were rectified by way of retention permission. On this uncontradicted evidence before the court, he has carried out eight unauthorised developments since 1996. He has been the subject of six enforcement or warning notices but has repeatedly been granted retention permission. The most recent retention permission was granted on 3rd October, 2013, in respect of much of the work involved in this application. This history demonstrates little regard for the planning process on the part of the respondent. It also reflects little credit on those charged with responsibility for the integrity of the planning process in Tuam. The planning situation in the historic heart of Tuam, as revealed in the evidence before the court in this application, may be described as chaotic. 6.8 In the light of the judgments in the European Court of Justice (as it then was), the Supreme Court of Ireland and the High Court of Ireland, as cited above, it is not possible for this court to extend any discretion to the respondent in relation to this application. The unauthorised use of the split-level car park must be restrained. I am conscious of the present season and wish to minimise inconvenience for the people of Tuam who are the innocent victims of the unauthorised works that have taken place in the centre of their town. The end of the school term is close and so the dangers of which Mr. Lane gave convincing evidence are likely to abate considerably over the next few weeks. Solely in the interests of the public of Tuam, I will make the order sought restraining all use of the unauthorised split-level car park involved in this application, but I will put a stay on this order until the end of the first week in January. 6.9 I will hear counsel as to the exact form of the court order which should have a map annexed thereto identifying exactly the area involved.
|
