The High Court dismissed Thomas Griffin’s application for leave to challenge An Bord Pleanála’s approval of a redevelopment of the Penneys store in Waterford. The court did not quash the permission or impose new planning conditions.
In a judgment dated 5 December 2008, Mr Justice John MacMenamin said the application was not properly brought within the statutory time limit because Brendan McCann, a notice party and fellow appellant in the planning appeal, was not served in time. McCann was served on 25 July 2008, but the court found no application to extend the service deadline and no evidence explaining the delay or establishing McCann’s position. The judge said the application failed on that ground alone.
Griffin sought an order quashing the Board’s 8 April 2008 permission and also asked the court to direct changes to its conditions. His proposed changes included reducing the building’s height near his home, increasing separation between floors, specifying finishes for an open roof area and imposing noise limits and restrictions on construction dates.
The judge held that judicial review did not give the court jurisdiction to devise planning conditions in this case. Consequential amendments to a decision could arise only after part of it had been quashed; the judge found no evidential basis or substantial grounds for such an order. He also said the issues raised concerned planning judgments within the Board’s expertise.
The court found that Griffin had left the inspector’s oral hearing before key discussion of the development’s effect on light and the raised floor level. After the Board circulated revised plans showing a 400-millimetre increase in building height, Griffin asked for more time but made no substantive submission. The judge ruled that he could not raise the floor-height issue in the judicial review after failing to address it when invited to do so.
The judgment noted that the Board had considered evidence on daylight and sunlight, including an assessment concluding that the development would not materially affect light to Griffin’s house. It had imposed conditions concerning access to a rear light well, opaque windows, construction hours and a construction and demolition plan. The court said the Board had considered the inspector’s report and was entitled to adopt some, but not all, of the recommended conditions.
The court concluded that the application for leave failed on all grounds. The ruling concerned permission to pursue judicial review; it did not substitute the court’s own planning conditions for those set by the Board.