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Planning and Environment Law Briefing

Nestor v An Bord Pleanála [2018] IEHC 547

Application for judicial review - planning permission refusal - litigant in person - 2007 Building Guidelines

Judgment of Noonan J delivered on 30 July 2018

The applicant was the owner of property situated on College Road, Galway City - consisting of a three storey dwellinghouse with apartments to the rear. In 2013, Galway City Council granted permission for redevelopment works on the site which would take the total number of apartments on the site to six. The notice parties appealed to the respondent, who in turn refused to allow this development to go ahead in a decision dated 3 March 2014. 

The reasons cited by the respondent included the 'discordant' nature of the proposed front elevation of the development relative to neighbouring structures. It was also held that the proposed inclusion of balconies would overlook neighbouring properties in a manner that was seriously injurious to the area. The respondent concluded by commenting that such an application, if allowed, would constitute 'over development' of the site. The applicant sought leave to apply for judicial review against this decision on 24 November 2014. 

An ex parte hearing for leave was refused when it came before Humphreys J on 3 December 2014. The matter then appeared before the Court of Appeal on 11 April 2016, who substituted its order extending the time to apply for judicial review and granted leave to the applicant to do so. Central to the applicant's case was the contention that the decision of the respondent was arrived at unlawfully by virtue of reliance on a typographical error pertaining to the width of a vehicle access point. 

The court noted that the onus of proving that a decision was unlawfully arrived at rests with the applicant, who had failed to provide incontrovertible evidence of the respondent's judgement being swayed by the erroneous recording of the vehicle access point. Accordingly, the applicant had not discharged the burden of proof and the application was dismissed. 

 

 

Minister commences Planning and Development (Amendment) Act 2018  

On 18 October, the Minister for Housing, Planning and Local Government, Eoghan Murphy, commenced aspects of the Planning and Development (Amendment) Act 2018 by signing into law Statutory Instrument No. 436 of 2018. The following provisions were commenced, taking effect from 22 October:

  • Part 1 insofar as it is not already in operation
  • Part 3, except: para (c) of s 21; ss (4) of s 23; para (c) of ss (5) of s 23 and s 5, 8, 33, 34, 40, 42, 45, 49
  • Part 5
  • Schedules 2, 3 and 4

 

 

 


Note: This article is not intended to be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.

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