The High Court has quashed Longford County Council’s agreement allowing a proposed development’s main building to be moved about 14.5 metres to the north-east, ruling that the change went beyond the limited flexibility permitted by the planning permission.
Mr Justice Brian McGovern delivered judgment on 25 October 2007 in judicial review proceedings brought by Gerard Dooner and Teresa Dooner against the council. Developer Dan Magan was a notice party. The applicants own a public house across the road from the proposed site in Killashee, Co Longford.
The proposal included a retail unit, crèche, five townhouses, a restaurant, parking and landscaping, and a connection to a foul-water treatment plant. Longford County Council granted permission in June 2005. On appeal, An Bord Pleanála granted permission subject to 20 conditions in December 2005, including requirements concerning two mature walnut trees and realignment of the N63.
In early 2007, the developer’s engineer submitted proposals addressing those conditions. Correspondence referred to moving the building in different directions, and the court noted substantial vagueness and uncertainty in the plans and descriptions. The council accepted a proposal involving a 14.5-metre north-east shift. The applicants argued that this was a major departure from the approved plans, outside the council’s authority, and should have required a new planning application. The council and developer maintained that the change was within the authority delegated by the Board’s conditions and was needed to address the road alignment and protect the trees.
The judge found that the council had authority, and an obligation, to agree matters concerning the trees and road alignment. But the question was whether this particular agreement stayed within the limited flexibility allowed under the principles in Boland v An Bord Pleanála. The court concluded that moving the main building 14.5 metres was substantial in the context of the site and exceeded those limits. It held that the council acted ultra vires in agreeing to the change.
The court quashed the council’s decision of 7 March 2007. It did not decide whether the proposed new building location should be approved, and it did not quash An Bord Pleanála’s December 2005 permission. The judge said that if the developer wished to proceed on the basis of the revised location, it should form the subject of a new planning application.