Planning Determination
Planning and Development Act
Interpretation.
2.— (1) In this Act, except where the context otherwise requires—
“acquisition of land” shall be construed in accordance with section 213(2), and cognate words shall be construed accordingly;
“the Act of 1919” means the Acquisition of Land (Assessment of Compensation) Act, 1919;
F2[“Act of 1933” means the Foreshore Act 1933;]
“the Act of 1934” means the Town and Regional Planning Act, 1934;
“the Act of 1963” means the Local Government (Planning and Development) Act, 1963;
“the Act of 1976” means the Local Government (Planning and Development) Act, 1976;
“the Act of 1982” means the Local Government (Planning and Development) Act, 1982;
“the Act of 1983” means the Local Government (Planning and Development) Act, 1983;
“the Act of 1990” means the Local Government (Planning and Development) Act, 1990;
“the Act of 1992” means the Local Government (Planning and Development) Act, 1992;
“the Act of 1993” means the Local Government (Planning and Development) Act, 1993;
“the Act of 1998” means the Local Government (Planning and Development) Act, 1998;
“the Act of 1999” means the Local Government (Planning and Development) Act, 1999;
F3[“Act of 2001” means the Transport (Railway Infrastructure) Act 2001;
“Act of 2006” means the Planning and Development (Strategic Infrastructure) Act 2006;
“Act of 2007” means the Water Services Act 2007;
“Act of 2008” means the Dublin Transport Authority Act 2008;
“Act of 2010” means the Planning and Development (Amendment) Act 2010;]
F3[“adaptation to climate change” means the taking of measures to manage the impacts of climate change;]
“advertisement” means any word, letter, model, balloon, inflatable structure, kite, poster, notice, device or representation employed for the purpose of advertisement, announcement or direction;
“advertisement structure” means any structure which is a hoarding, scaffold, framework, pole, standard, device or sign (whether illuminated or not) and which is used or intended for use for exhibiting advertisements or any attachment to a building or structure used for advertising purposes;
“agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the training of horses and the rearing of bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and “agricultural” shall be construed accordingly;
F3[“allotment” means an area of land comprising not more than 1,000 square metres let or available for letting to and cultivation by one or more than one person who is a member of the local community and lives adjacent or near to the allotment, for the purpose of the production of vegetables or fruit mainly for consumption by the person or a member of his or her family;]
“alteration” includes—
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof,
that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures;
F3[“anthropogenic” in relation to greenhouse gas emissions means those emissions that result from or are produced by human activity or intervention;]
“appeal” means an appeal to the Board;
F3[“appropriate assessment” shall be construed in accordance with section 177R;]
“architectural conservation area” shall be construed in accordance with section 81(1);
“area of special planning control” shall be construed in accordance with section 85(8);
“attendant grounds”, in relation to a structure, includes land lying outside the curtilage of the structure;
F4[“Birds Directive” means Directive 2009/147/EC9 of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds;]
“Board” means An Board Pleanála;
“chairperson” means the chairperson of the Board,
F5[“chief executive”, in relation to a local authority, including a local authority exercising functions as a planning authority, means the chief executive appointed under Chapter 2 of Part 14 (as amended by section 54 of the Local Government Reform Act 2014) of the Local Government Act 2001;]
F2[“coastal planning authority” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
“Commissioners” means the Commissioners of Public Works in Ireland;
“company”, except in section 149(5), means a company within the meaning of section 2 of the Companies Act, 1963, or a company incorporated outside the State;
F6[“confirmation notice” means the confirmation notice sent pursuant to article 97B(2) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) following the entering onto the EIA portal of the information referred to in article 97A of those Regulations to which that notice relates;]
F3[“core strategy” shall be construed in accordance with section 10 (inserted by section 7 of the Planning and Development (Amendment) Act 2010);]
F7[…]
“dangerous substance” has the meaning assigned to it by the Major Accidents Directive;
“deputy chairperson” means the deputy chairperson of the Board;
“development” has the meaning assigned to it by section 3, and “develop” shall be construed accordingly;
“development plan” means a development plan under section 9(1);
F8[“DTA” means the body formerly known as the Dublin Transport Authority whose name was changed with effect from 1 December 2009 to the National Transport Authority pursuant to section 30 of the Public Transport Regulation Act 2009;]
F9[“EIA portal” means the website referred to in section 172A;]
F3[“electronic form” means information that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means and is capable of being used to make a legible copy or reproduction of that communicated information but does not include information communicated in the form of speech and such electronic means includes electrical, digital, magnetic, optical electro-magnetic, biometric, photonic and any other form of related technology;]
“endangered” means exposed to harm, decay or damage, whether immediately or over a period of time, through neglect or through direct or indirect means;
“enforcement notice” means an enforcement notice under section 154;
F3[“Environmental impact assessment” has the meaning given to it by section 171A;
F10[“Environmental Impact Assessment Directive” means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 20113 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 20144 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment;]]
F11[“environmental impact assessment report” means a report of the effects, if any, which proposed development, if carried out, would have on the environment and shall include the information specified in Annex IV of the Environmental Impact Assessment Directive;]
F4[“European site” has the meaning given to it by section 177R of Part XAB;]
F12[“European Union” means European Union within the meaning of the European Communities Act 1972 (No. 27 of 1972);]
“exempted development” has the meaning specified in section 4;
“exhibit”, in relation to an advertisement, includes affix, inscribe, print, paint, illuminate and otherwise delineate;
“existing establishment” has the meaning that it has in the Major Accidents Directive;
“fence” includes a hoarding or similar structure but excludes any bank, wall or other similar structure composed wholly or mainly of earth or stone;
F3[“flood risk assessment” means an assessment of the likelihood of flooding, the potential consequences arising and measures, if any, necessary to manage those consequences;]
F13[“functional area” means, in relation to a planning authority, its administrative area for the purposes of the Local Government Acts 1925 to 2014;]
“functions” includes powers and duties;
F14[“Greater Dublin Area” (“GDA”) has the meaning assigned to it by section 3 of the Dublin Transport Authority Act 2008;]
“habitable house” means a house which—
(a) is used as a dwelling,
(b) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling and is not derelict, or
(c) was provided for use as a dwelling but has not been occupied;
F4[“Habitats Directive” means Council Directive 92/43/EEC10 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, amended by Corrigendum to Council Directive 92/43/EEC11 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora amended by Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded12; Council Directive 97/62/EC13 of 27 October 1997 adapting to technical and scientific progress Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded14, and Council Directive 2006/105/EC15 of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania;]
“house” means a building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, and where appropriate, includes a building which was designed for use as 2 or more dwellings or a flat, an apartment or other dwelling within such a building;
F3[“housing strategy” means a strategy included in a development plan under section 94;]
“integrated pollution control licence” means a licence under Part IV of the Environmental Protection Agency Act, 1992;
“land” includes any structure and any land covered with water (whether inland or coastal);
F3[“landscape” has the same meaning as it has in Article 1 of the European Landscape Convention done at Florence on 20 October 2000;
F15[“large-scale residential development” means a development that includes—
(a) the development of 100 or more houses,
(b) the development of student accommodation that includes 200 or more bed spaces,
(c) both the development of 100 or more houses and of student accommodation, or
(d) both the development of student accommodation that includes 200 or more bed spaces and of houses,
where the LRD floor space of—
(i) in the case of paragraph (a), the buildings comprising the houses,
(ii) in the case of paragraph (b), the student accommodation,
(iii) in the case of paragraphs (c) and (d), the buildings comprising the houses and the student accommodation,
is not less than 70 per cent, or such other percentage as may be prescribed, of the LRD floor space of the buildings comprising the development;]]
“local area plan” means a local area plan under section 18;
F16[“local authority” means a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014);]
F15[“LRD” means large-scale residential development;]
F15[“LRD appeal” means an appeal against a decision of a planning authority that relates to an application for permission to which section 32A(1) applies;]
F15[“LRD meeting” means a meeting in accordance with sections 32B and 32C;]
F15[“LRD opinion” has the meaning given to it by section 32D;]
F15[“LRD floor space”, in relation to a building or part of a building, means the area ascertained by the internal measurement of the floor space on each floor of a building or part of a building (including internal walls and partitions), disregarding any floor space provided for—
(a) the parking of vehicles by persons—
(i) occupying or using the building or the part of the building,
(ii) for a purpose incidental to the primary purpose of the building or part of the building,
and
(b) ancillary residential services, including gyms and child-care facilities;]
“major accident” has the meaning assigned to it by the Major Accidents Directive;
F4[“Major Accidents Directive” means Council Directive 96/82/EC of 9 December 199616 amended by Directive 2003/105/EC of the European Parliament and Council of 16 December 200317;]
F17[…]
F2[“maritime area” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime area consent” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime site” means a part of the maritime area, and includes—
(a) the waters of that part of the maritime area,
(b) the seabed in that part of the maritime area, and
(c) all substrata beneath the seabed in that part of the maritime area;]
F2[“maritime spatial plan” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“maritime spatial planning” means—
(a) maritime spatial planning within the meaning of Directive 2014/89/EU of the European Parliament and of the Council of 23 July 201426, and
(b) land-sea interactions within the meaning of that Directive;]
F18[“mine” means an excavation or system of excavations made for the purpose of, or in connection with, the getting, wholly or substantially by means involving the employment of persons below ground, of minerals (whether in their natural state or in solution or suspension) or products of minerals;
“minerals” includes stone, slate, clay, gravel, sand and other natural deposits except peat;]
“Minister” means the Minister for the Environment and Local Government;
F2[“National Marine Planning Framework” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F2[“national newspaper” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
F19[“National Spatial Strategy” means the “National Spatial Strategy: 2002 – 2020” published by the Government on 28 November 2002, or any document published by the Government which amends or replaces that Strategy;]
F3[“Natura 2000 network” has the meaning assigned to it by Article 3, paragraph 1 of the Habitats Directive;
“Natura impact statement” shall be construed in accordance with section 177T;
“Natura impact report” shall be construed in accordance with section 177T;]
F2[“nearshore area” has the meaning assigned to it by the Maritime Area Planning Act 2021;]
“new establishment” has the meaning that it has in the Major Accidents Directive;
F20[“NTA” means the National Transport Authority, being the name to which the name of the Dublin Transport Authority was changed with effect from 1 December 2009 pursuant to section 30 of the Public Transport Regulation Act 2009;]
F2[“objectives of maritime spatial planning” means—
(a) those matters to which the State is required, in accordance with paragraph 1 of Article 5 of Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014, to give consideration when establishing and implementing maritime spatial planning,
(b) those matters to which the State is required, in accordance with paragraph 2 of the said Article 5, to aim to contribute through maritime spatial plans, and
(c) objectives that the State is, for the time being, seeking to pursue in accordance with the second sentence of the said paragraph 2;]
“occupier”, in relation to a protected structure or a proposed protected structure, means—
(a) any person in or entitled to immediate use or enjoyment of the structure,
(b) any person entitled to occupy the structure, and
(c) any other person having, for the time being, control of the structure;
F21[“operator” in relation to a quarry means a person who at all material times is in charge of the carrying on of quarrying activities at a quarry or under whose direction such activities are carried out;]
“ordinary member” means a member of the Board other than the chairperson;
F2[“outer maritime area” means that part of the maritime area that is not within the nearshore area of any coastal planning authority;]
“owner”, in relation to land, means a person, other than a mortgagee not in possession, who, whether in his or her own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let;
“party to an appeal or referral” means the planning authority and any of the following persons, as appropriate—
(a) the appellant,
(b) the applicant for any permission in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant),
(c) in the case of a referral under section 5, the person making the referral, and any other person notified under subsection (2) of that section,
(d) in the case of a referral under section 34(5), the applicant for the permission which was granted,
(e) in the case of a referral under section 37(5), the person who made the application for permission which was returned by the planning authority,
(f) any person served or issued by a planning authority with a notice or order, or copy thereof, under sections 44, 45, 46, 88 and 207,
F22[(ff) in the case of a referral under section 57(8), the person making the referral,]
(g) in the case of a referral under section 96(5), a prospective party to an agreement under section 96(2),
(h) in the case of an appeal under section 169, the development agency,
(i) in the case of a referral under section 193, the person by whom the application for permission for erection of the new structure was made,
(j) the applicant for a licence under section 254 in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant),
and “party” shalcl be construed accordingly;
F23[“permission” means a permission granted under F24[section 34, 37G, 37N or 293], as appropriate;]
F24[“permission regulations” means regulations under section 33, 37P, 172(2), 174 or 306;]
F4[“planning application” means an application to a planning authority, or the Board, as the case may be, in accordance with permission regulations for permission for the development of land required by those regulations;]
F25[“planning authority” means a local authority;]
“prescribed” means prescribed by regulations made by the Minister and “prescribe” shall be construed accordingly;
“proposed protected structure” means a structure in respect of which a notice is issued under section 12(3) or under section 55 proposing to add the structure, or a specified part of it, to a record of protected structures, and, where that notice so indicates, includes any specified feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition;
F15[“prospective LRD applicant” has the meaning given to it by section 32A;]
“protected structure” means—
(a) a structure, or
(b) a specified part of a structure,
which is included in a record of protected structures, and, where that record so indicates, includes any specified feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition;
“protection”, in relation to a structure or part of a structure, includes conservation, preservation and improvement compatible with maintaining the character and interest of the structure or part;
“public place” means any street, road, seashore or other place to which the public have access whether as of right or by permission and whether subject to or free of charge;
“public road” has the same meaning as in the Roads Act, 1993;
F26[“quarry” means an excavation or system of excavations made for the purpose of, or in connection with, the getting of minerals (whether in their natural state or in solution or suspension) or products of minerals, being neither a mine nor merely a well or bore-hole or a well and bore-hole combined, and shall be deemed to include—
(i) any place on the surface surrounding or adjacent to the quarry occupied together with the quarry for the storage or removal of the minerals or for the purposes of a process ancillary to the getting of minerals, including the breaking, crushing, grinding, screening, washing or dressing of such minerals but, subject thereto, does not include any place at which any manufacturing process is carried on;
(ii) any place occupied by the owner of a quarry and used for depositing refuse from it but any place so used in connection with two or more quarries, and occupied by the owner of one of them, or by the owners of any two or more in common, shall be deemed to form part of such one of those quarries as the Minister may direct;
(iii) any line or siding (not being part of a railway) serving a quarry but, if serving two or more quarries shall be deemed to form part of such one of them as the Minister may direct;
(iv) a conveyor or aerial ropeway provided for the removal from a quarry of minerals or refuse.]
“record of protected structures” means the record included under section 51 in a development plan;
F27[“referral” means a referral to the Board under section 5, 34(5), 37(5), 57, 96(5) or 193(2);]
F28[“regional assembly” means a body established in accordance with section 43 (as amended by the Local Government Reform Act 2014) of the Local Government Act 1991;]
F29[“regional assemblies in respect of the GDA” means regional assemblies established in accordance with section 43 (as amended by the Local Government Reform Act 2014) of the Local Government Act 1991, in respect of a region or regions which includes all or part of the Greater Dublin Area for the purposes of section 3 of the Dublin Transport Authority Act 2008;]
F30[“regional spatial and economic strategy” means regional spatial and economic strategy made under Chapter III of Part II;]
“register” means the register kept under section 7;
“registering authority” means a registering authority within the meaning of the Registration of Title Act, 1964;
F31[“reserved function”, in relation to a local authority, shall be construed in accordance with section 131 (as amended by the Local Government Reform Act 2014) of the Local Government Act 2001;]
“risk” has the meaning assigned to it by the Major Accidents Directive;
“road” has the same meaning as in the Roads Act, 1993;
“seashore” has the same meaning as in the Foreshore Act, 1933;
F3[“service connection” has the meaning given to it by section 2 of the Act of 2007;
“settlement hierarchy” has the meaning given to it by section 10(2C) (inserted by section 7 of the Act of 2010); ]
“shares” includes stock and “share capital” shall be construed accordingly;
“special amenity area order” means an order confirmed under section 203;
“State authority” means—
(a) a Minister of the Government, or
(b) the Commissioners;
“statutory undertaker” means a person, for the time being, authorised by or under any enactment or instrument under an enactment to—
(a) construct or operate a railway, canal, inland navigation, dock, harbour or airport,
(b) provide, or carry out works for the provision of, gas, electricity or telecommunications services, or
(c) provide services connected with, or carry out works for the purposes of the carrying on of the activities of, any public undertaking;
F3[“strategic development zone” has the meaning given to it by section 165; ]
F32[“strategic downstream gas pipeline” means any proposed gas pipeline, other than an upstream gas pipeline, which is designed to operate at 16 bar or greater, and is longer than 20 kilometres in length;
F3[“strategic environmental assessment” means an assessment carried out in accordance with regulations made under section 10(5), 13(12), 19(4), 23(3), or 168(3) as the case may be;]
“strategic gas infrastructure development” means any proposed development comprising or for the purposes of a strategic downstream gas pipeline or a strategic upstream gas pipeline, and associated terminals, buildings and installations, whether above or below ground, including any associated discharge pipe;
“strategic infrastructure development” means—
(a) any proposed development in respect of which a notice has been served under section 37B(4)(a),
(b) any proposed development by a local authority referred to in section 175(1) or F33[subsection (3) or (6) of section 226],
F34[(c) any proposed development referred to in section 181A(1) which has been identified as likely to have significant effects on the environment in accordance with regulations made under section 176,]
(d) any proposed development referred to in section 182A(1),
(e) any proposed strategic gas infrastructure development referred to in section 182C(1),
(f) any scheme or proposed road development referred to in section 215,
(g) any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006), or
F35[(h) any compulsory acquisition of land referred to in section 214, 215A, 215B or 215C, being an acquisition related to development specified in any of the preceding paragraphs of this definition;]
“Strategic Infrastructure Division” means the division of the Board referred to in section 112A(1);
“strategic upstream gas pipeline” means so much of any gas pipeline proposed to be operated or constructed—
(a) as part of a gas production project, or
(b) for the purpose of conveying unprocessed natural gas from one or more than one such project to a processing plant or terminal or final coastal landing terminal,
as will be situate in the functional area or areas of a planning authority or planning authorities;]
“structure” means any building, structure, excavation, or other thing constructed or made on, in or under any land, or any part of a structure so defined, and—
(a) where the context so admits, includes the land on, in or under which the structure is situate, and
(b) in relation to a protected structure or proposed protected structure, includes—
(i) the interior of the structure,
(ii) the land lying within the curtilage of the structure,
(iii) any other structures lying within that curtilage and their interiors, and
(iv) all fixtures and features which form part of the interior or exterior of any structure or structures referred to in subparagraph (i) or (iii);
F15[“student accommodation” means a building or part thereof used, or to be used, for the sole purpose (subject to paragraph (b)) of providing residential accommodation to students during academic term times, whether or not provided by a relevant provider (within the meaning of the Qualifications and Quality Assurance (Education and Training) Act 2012 ), and that is not used, or to be used,—
(a) as permanent residential accommodation, or
(b) as a hotel, hostel, apart-hotel or similar type accommodation other than for the purposes of providing residential accommodation to tourists or visitors outside of academic term times;]
F3[“substitute consent” has the meaning given to it by section 177A;]
“substratum of land” means any subsoil or anything beneath the surface of land required—
(a) for the purposes of a tunnel or tunnelling or anything connected therewith, or
(b) for any other purpose connected with a scheme within the meaning of the Roads Act, 1993;
F36[“this Act” includes a statutory instrument made thereunder;]
“Transboundary Convention” means the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, done at Espoo (Finland), on 25 February, 1991;
F14[“transport strategy” has the meaning assigned to it by section 12 of the Dublin Transport Authority Act 2008;]
“traveller” means a traveller within the meaning of section 2 of the Housing (Traveller Accommodation) Act, 1998;
“unauthorised development” means, in relation to land, the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use;
“unauthorised structure” means a structure other than—
(a) a structure which was in existence on 1 October 1964, or
(b) a structure, the construction, erection or making of which was the subject of a permission for development granted under Part IV of the Act of 1963 or deemed to be such under section 92 of that Act F23[or under F24[section 34, 37G or 37N or 293] of this Act], being a permission which has not been revoked, or which exists as a result of the carrying out of exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act);
“unauthorised use” means, in relation to land, use commenced on or after 1 October 1964, being a use which is a material change in use of any structure or other land and being development other than—
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 F23[or under F24[section 34, 37G, 37N or 293] of this Act], being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;
“unauthorised works” means any works on, in, over or under land commenced on or after 1 October 1964, being development other than—
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 F23[or under F24[section 34, 37G, 37N or 293] of this Act], being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;
“use”, in relation to land, does not include the use of the land by the carrying out of any works thereon;
“warning letter” means a notification in writing under section 152(1);
“waste licence” means a waste licence under Part V of the Waste Management Act, 1996;
“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal and, in relation to a protected structure or proposed protected structure, includes any act or operation involving the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior or exterior of a structure.
(2) In this Act—
(a) a reference to a section, Schedule, Chapter or Part is to a section, Schedule, Chapter or Part of this Act, unless it is indicated that reference to some other enactment is intended, and
(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
(3) In this Act, a reference to the carrying out of development on behalf of a State authority shall, where that authority is a Minister of the Government, be construed as including a reference to the carrying out of development by the Commissioners on behalf of the Minister.
(4) A reference in this Act to contravention of a provision includes, where appropriate, a reference to refusal or failure to comply with that provision.
(5) A reference in this Act to performance of functions includes a reference to the exercise of powers and the performance of duties.
(6) A reference in this Act to any other enactment shall, except where the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.
(7) The doing of anything that is required under this Act to be done by resolution shall be a reserved function.
F37[(8) Subject to this Act, a word or expression that is used in this Act and that is also used in the Environmental Impact Assessment Directive has, unless the context otherwise requires, the same meaning in this Act as it has in that Directive.]
Annotations
Amendments:
F2
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 1, S.I. No. 488 of 2022.
F3
Inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(c), S.I. No. 405 of 2010.
F4
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(b), S.I. No. 405 of 2010.
F5
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6 and sch. 2 ref. no. 2, S.I. No. 436 of 2018.
F6
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F7
Deleted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(a), S.I. No. 405 of 2010.
F8
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 1, S.I. No. 214 of 2014.
F9
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F10
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(i), in effect as per reg. 2(1).
F11
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(ii), in effect as per reg. 2(1).
F12
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F13
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 2, S.I. No. 214 of 2014.
F14
Inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009.
F15
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 2, S.I. No. 715 of 2021.
F16
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 3, S.I. No. 214 of 2014.
F17
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6 and sch. 2 ref. no. 1, S.I. No. 436 of 2018.
F18
Inserted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 3.
F19
Inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(a), S.I. No. 525 of 2006.
F20
Inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2, part 4 ref. 5, S.I. No. 214 of 2014.
F21
Inserted (15.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 16, S.I. No. 474 of 2011.
F22
Inserted (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 6(a), commenced on enactment.
F23
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(a), not commenced as of date of revision.
F24
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 1, S.I. No. 488 of 2022.
F25
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 6, S.I. No. 214 of 2014.
F26
Substituted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 3.
F27
Substituted (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 6(b), commenced on enactment.
F28
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 7.
F29
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4, ref. 8.
F30
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 9, S.I. No. 214 of 2014.
F31
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 10, S.I. No. 214 of 2014.
F32
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(b) and (c), S.I. No. 684 of 2006.
F33
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 7, S.I. No. 436 of 2018.
F34
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 3.
F35
Substituted (21.07.2009) by Harbours (Amendment) Act 2009 (26/2009), s. 7(2)(a), commenced on enactment.
F36
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(a)(iii), in effect as per reg. 2(1).
F37
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 6(b), in effect as per reg. 2(1).
Modifications (not altering text):
C18
Prospective affecting provision: definitions inserted in subs. (1) by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(a), not commenced as of date of revision.
F23[“abstraction” has the same meaning as in the Water Environment (Abstractions and Associated Impoundments) Act 2022;]
F23[“abstraction licence” means a licence granted by the Environmental Protection Agency under Part 5 of the Water Environment (Abstractions and Associated Impoundments) Act 2022;]
C19
Subs. (1) construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 13, S.I. No. 270 of 2017.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 2 (interpretation) of Act of 2000 during specified period
13. Section 2 of the Act of 2000 shall have effect in subsection (1) during the specified period—
(a) as if “, or section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 37N” in the definition of “permission”,
(b) as if “, or section 12 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 174” in the definition of “permission regulations”,
(c) as if the following were inserted after subparagraph (a) in the definition of “strategic infrastructure development”:
“(aa) any proposed development referred to in section 4 (other than development in respect of which an election has been exercised under subsection (4) of that section) of the Planning and Development (Housing) and Residential Tenancies Act 2016,”,
(d) as if the following definition were inserted after the definition of “structure”:
“ ‘student accommodation’—
(a) means a building or part thereof used or to be used to accommodate students whether or not provided by a relevant provider (within the meaning of Qualifications and Quality Assurance (Education and Training) Act 2012), and that is not for use—
(i) as permanent residential accommodation, or
(ii) subject to paragraph (b), as a hotel, hostel, apart-hotel or similar type accommodation,
and
(b) includes residential accommodation that is used as tourist or visitor accommodation but only if it is so used outside of academic term times;”,
(e) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N of this Act,” in subparagraph (b) of the definition of “unauthorised structure”, and
(f) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N of this Act,” in subparagraph (b) of the definition of “unauthorised use”.
Editorial Notes:
E6
Section as in force immediately before 1 September 2018 applied to the interpretation of S.I. No. 296 of 2018 as provided (21.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 3(2), in effect as per reg. 2(1).
E7
Previous affecting provision: definition of “permission regulations” substituted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 3; substituted (1.01.2022) as per F-note above.
E8
Previous affecting provision: definition of “manager” substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 4, S.I. No. 214 of 2014; deleted as per F-note above.
E9
Previous affecting provision: definition of “environmental impact statement” amended (31.10.2012) by European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012 (S.I. No. 419 of 2012), reg. 2(a)(ii); substituted by definition of “environmental impact assessment report” as per F-note above.
E10
Previous affecting provision: definition of “quarry” inserted (15.09.2011) by Environmental (Miscellaneous Provisions) Act 2011 (20/2011), s. 16, S.I. No. 474 of 2011; substituted as per F-note above.
E11
Previous affecting provision: definition of “Environmental Impact Assessment Directive” inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 4(c), S.I. No. 405 of 2010; amended (31.10.2012) by European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012 (S.I. No. 419 of 2012), reg. 2(a)(i); substituted as per F-note above.
E12
Previous affecting provision: definition of “DTA” inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009; substituted as per F-note above.
E13
Previous affecting provision: definition of “regional authorities within the GDA” inserted (4.01.2010) by Dublin Transport Authority Act 2008 (15/2008), s. 81, S.I. No. 574 of 2009; substituted as per F-note above.
E14
Previous affecting provision: definition of “permission” inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(b) and (c), S.I. No. 684 of 2006; substituted as per F-note above.
E15
Previous affecting provisions: definitions of “unauthorised structure”, “unauthorised use” and “unauthorised works” amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 6(d), S.I. No. 684 of 2006; substituted as per F-note above.
10 O.J.No.L206, 22.7.1992, p. 7
11 O.J.No.L 176, 20.7.1993, p 29-30
12 O.J. No. C241, 29.8.1994, p 21
13 O.J.No.L305, 8.11.1997, p 42-65
14 O.J. No. 236, 23.9.2003, p. 33
15 O.J. No.L363, 20.12.2006, p 368-408 and O.J. L 059, 8.3.1996, p.63
16 O.J. No. L10, 14.1.1997 p. 13
17 O.J.No. L345, 31.12.2003 p.97-105
26 OJ No. L257, 28.8.2014, p. 135
3 OJ L26, 28.1.2012, p.1
4 OJ L24, 25.4.2014, p.1
9 O.J.No. 20, 26.1.2010 p 7-25
ART III
Control of Development
Annotations
Modifications (not altering text):
C39
Application of Part III restricted (7.02.2014) by Water Services (No. 2) Act 2013 (50/2013), s. 33(10), S.I. No. 76 of 2014.
Water services strategic plan.
33.— …
(10) An application for permission under Part III of the Act of 2000 shall not be refused by a planning authority or An Bord Pleanála solely on the ground that the development to which the application relates is not referred to in the water services strategic plan for the time being in force, provided that the planning authority or An Bord Pleanála, as the case may be, considers that the development will facilitate the achievement of the objectives of that plan.
…
C40
Application of Part III extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 55(4) and 61(5), S.I. No. 846 of 2007.
Connection to a water supply.
55.— …
(4) Without prejudice to subsection (5), where a water services authority is also the relevant planning authority, the grant of a permission under Part III of the Act of 2000 in relation to a structure to which this section applies may, if it is indicated in the permission, include the agreement of the water services authority to the connection of that structure to its waterworks for the purposes of this section, subject to such conditions as the water services authority may require, consistent with its functions under this section.
…
Waste water connections.
61.— …
(5) Without prejudice to subsection (6), where a water services authority is also the relevant planning authority, the grant of a permission under Part III of the Act of 2000 in relation to a structure to which this section applies may, if it is indicated in the permission, include the agreement of the water services authority to the connection of that structure to its waste water works for the purposes of this section, subject to such conditions as the water services authority may require consistent with its powers under this section.
…
C41
Provision for consideration of waste management under Part made by Waste Management Act 1996 (10/1996), s. 22(10D) as inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 26(2)(d), S.I. No. 393 of 2004.
Waste management plans.
22.— …
(10D) (a) In performing their functions under the Planning and Development Acts 2000 to 2002, and, in particular, their functions under Part III and sections 175 and 179 of the Planning and Development Act 2000, planning authorities and An Bord Pleanála shall ensure that such measures as are reasonably necessary are taken to secure appropriate provision for the management of waste (and, in particular, recyclable materials) within developments, including the provision of facilities for the storage, separation and collection of such waste (and, in particular, such materials) and the preparation by the appropriate persons of suitable plans for the operation of such facilities.
(b) The Minister may issue guidelines as to the steps that may be taken to comply with this subsection.
C42
Application of Part restricted by Environmental Protection Agency Act 1992 (7/1992), s. 86(11) as substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004.
Conditions attached to a licence.
86.— …
(8) Where a permission under section 34 of the Act of 2000 has been granted or an application has been made for such permission in relation to development comprising or for the purposes of an activity, the Agency—
(a) may consult with the planning authority in whose functional area the activity is or will be situate in relation to any development which is necessary to give effect to any conditions to be attached to a licence or revised licence and which the Agency considers is not the subject of a permission or an application for a permission under section 34 of the Act of 2000, and
(b) may attach to the licence or revised licence such conditions related to the above-mentioned development as may be specified by the planning authority for the purposes of the proper planning and sustainable development of the area or stricter conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of emissions.
…
(11) Notwithstanding the requirements of Part III of the Act of 2000, works consisting of, or incidental to, the carrying out of development referred to in paragraph (a) of subsection (8) in respect of which conditions have been attached under paragraph (b) of that subsection to the licence or revised licence concerned shall be exempted development within the meaning, and for the purposes, of the Act of 2000.
C43
Provision for consideration of development plan under Part made (8.07.2003) by Digital Hub Development Agency Act 2003 (23/2003), s. 9(5), commenced on enactment.
Development plan.
9.— …
(5) Dublin City Council and An Bord Pleanála shall, in deciding any application or in determining any application on appeal for permission under Part III of the Planning and Development Act 2000 in respect of development in the digital hub area, consider anything relevant contained in the development plan.
…
Editorial Notes:
E150
Application of Part III restricted by Water Services Act 2007 (30/2007), s. 36(20), not commenced; repealed (1.01.2014) by Water Services (No. 2) Act 2013 (50/2013), s. 4(1), S.I. No. 575 of 2013.
General obligation to obtain permission.
32.—(1) Subject to the other provisions of this Act, permission shall be required under this Part—
(a) in respect of any development of land, not being exempted development, and
(b) in the case of development which is unauthorised, for the retention of that unauthorised development.
(2) A person shall not carry out any development in respect of which permission is required by subsection (1), except under and in accordance with a permission granted under this Part.
F306[
Opinion as to flexibility with regard to application for permission.
32I. …]
Annotations:
Amendments:
F315
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C46
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F315[32I. (1) The planning authority shall, within the period of 4 weeks beginning on the date on which the meeting convened under section 32H(5) takes place, consider—
(a) the information included in the request for the meeting under section 32H, and
(b) any other relevant information that is made available at the meeting,
and determine if it is satisfied that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed certain details of the application.
(2) Where the planning authority determines that it is satisfied in accordance with subsection (1) it shall provide an opinion to that effect to the prospective applicant.
(3) Where the planning authority determines that it is not satisfied in accordance with subsection (1) it shall notify the prospective applicant to that effect.
(4) An opinion under subsection (2) shall specify—
(a) the details, or groups of details, of the proposed development as proposed by the prospective applicant that may be confirmed after the proposed application has been made and decided,
(b) the circumstances relating to the proposed development that indicate that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed the details referred to in paragraph (a), and
(c) that, in respect of each detail, or group of details, referred to in paragraph (a), the proposed application shall, in addition to any other requirement imposed by or under this Act, be accompanied by the information referred to in section 32H(2)(f).
(5) An opinion issued by a planning authority under subsection (2) shall only be made public when a planning application in respect of the proposed development is made in accordance with section 34.
(6) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient for the purposes of the planning authority providing an opinion under subsection (2), including the form of the opinion.
(7) Where, on the expiry of the period specified in subsection (1), the planning authority has failed to provide an opinion or notification, the planning authority shall proceed to do so as soon as practicable, notwithstanding that the period has expired, and provide the prospective applicant with a written explanation why it failed to provide the opinion or notification in the specified period.]
F316[
Procedure without prejudice to performance by the planning authority of other functions.
32J. …]
Annotations:
Amendments:
F316
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C47
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F316[32J. Neither the taking place of a meeting under section 32H nor the provision of an opinion or notification under section 32I shall prejudice the performance by the planning authority of its functions under this Act or any regulations under this Act or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.]
F317[
Effect of steps not being completed within the time period.
32K. …]
Annotations:
Amendments:
F317
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C48
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F317[32K. A person shall not question the validity of any steps taken by a planning authority by reason only that the procedures set out in sections 32H and 32I, were not completed within the time referred to in the sections concerned.]
F318[
Offence of taking payment, etc. in connection with section 32H procedure.
32L. …]
Annotations:
Amendments:
F318
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
Modifications (not altering text):
C49
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 11, not commenced as of date of revision.
F318[32L. A member or official of a planning authority who takes or seeks any favour, benefit or payment, direct or indirect (on his or her own behalf or on behalf of any other person or body), in connection with the provision of an opinion or notification under section 32I commits an offence.]
Regulations regarding applications for permission.
33.—(1) The Minister shall by regulations provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for permission for the development of land.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for the following—
(a) requiring the submission of information in respect of applications for permission for the development of land;
(b) requiring any applicants to publish any specified notices with respect to their applications;
(c) enabling persons to make submissions or observations on payment of the prescribed fee and within a prescribed period;
F319[(ca) providing for the waiving or reduction of a fee to which paragraph (c) would relate, or the payment of a different fee, in respect of submissions or observations made by a person in his or her capacity as a member of a local authority;]
(d) requiring planning authorities to acknowledge in writing the receipt of submissions or observations;
(e) requiring any applicants to furnish to any specified persons any specified information with respect to their applications;
(f) requiring planning authorities to—
(i) (I) notify prescribed authorities of such proposed development or classes of development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars, plans or other information in respect thereof as may be prescribed;
(g) requiring any applicants to submit any further information with respect to their applications (including any information as to any estate or interest in or right over land) or information regarding any effect on the environment which the development may have;
F320[(ga) enabling planning authorities to request applicants to submit further information with respect to their applications, for the purposes of paragraph (g), and providing for, in respect of different classes or descriptions of development, the information or type of information which may be requested and the number of requests that may be made;]
(h) enabling planning authorities to invite an applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the application relates and, in case the plans, drawings or particulars are submitted to a planning authority in response to such an invitation, enabling the authority in deciding the application to grant a permission for the relevant development as modified by all or any of the plans, drawings or particulars;
(i) requiring the production of any evidence to verify any particulars of information given by any applicants;
(j) requiring planning authorities to furnish to the Minister and to any other specified persons any specified information with respect to applications and the manner in which they have been dealt with;
(k) requiring planning authorities to publish or give notice of their decisions in respect of applications for permission, including the giving of notice thereof to prescribed bodies and to persons who made submissions or observations in respect of such applications;
F319[(ka) facilitating the making and processing by electronic means of—
(i) planning applications, appeals, referrals, applications for approval, submissions and consents under this Act, and
(ii) the payment of fees, the issuing of decisions and setting out of requirements to which subparagraph (i) relates;
(kb) requiring the inputting of data by planning authorities into such databases or national planning systems as may be prescribed by the Minister;]
(l) requiring an applicant to submit specified information to the planning authority with respect to development, or any class of development, carried out by a person to whom section 35(7) applies pursuant to a permission granted to the applicant or to any other person under this Part or under Part IV of the Act of 1963.
(3) (a) Regulations under this section may, for the purposes of securing the attainment of an objective included in a development plan pursuant to section 10(2)(m), require any applicant for permission to provide the planning authority with such information, in respect of development (including development of a particular class) that the applicant proposes to carry out in a Gaeltacht area, as it may specify.
(b) A requirement to which paragraph (a) applies may relate to development belonging to a particular class.
(c) Before making regulations containing a requirement to which paragraph (a) applies the Minister shall consult with the Minister for Arts, Heritage, Gaeltacht and the Islands.
(4) Regulations under this section may make additional or separate provisions in regard to applications for outline permission within the meaning of section 36.
F321[(5) Regulations under this section may make different provision with respect to applications for permission for development made by the Central Bank of Ireland in cases where the disclosure of information in relation to the application concerned might prejudice the security, externally or internally, of the development or the land concerned or facilitate any unauthorised access to or from the land by any person, and such regulations may make provision modifying the operation of section 38 in relation to applications in those cases. ]
Annotations
Amendments:
F319
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 22(a), (b), S.I. No. 436 of 2018.
F320
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 4, S.I. No. 715 of 2021.
F321
Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 90(a), S.I. No. 287 of 2013.
Modifications (not altering text):
C50
Functions under subs. (3)(c) and regulations transferred (1.06.2011) by Irish Language, Gaeltacht and the Islands (Transfer of Departmental Administration and Ministerial Functions) (No. 2) Order 2011 (S.I. No. 216 of 2011), regs. 2 and 3.
2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Tourism, Culture and Sport.
(2) References to the Department of Community, Equality and Gaeltacht Affairs contained in any Act or any instrument made thereunder and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be construed as references to the Department of Tourism, Culture and Sport.
3. (1) The functions vested in the Minister for Community, Equality and Gaeltacht Affairs under—
(a) section 33 (3)(c) of the Planning and Development Act 2000 (No. 30 of 2000), and
(b) the Planning and Development Regulations 2001 (S.I. No. 600 of 2001),
are transferred to the Minister for Tourism, Culture and Sport.
Editorial Notes:
E153
Power pursuant to section exercsied (9.11.2022) by Planning and Development (Amendment) (No. 2) Regulations 2022 (S.I. No. 565 of 2022).
E154
Power pursuant to section exercsied (17.12.2021) by Planning and Development (Large-scale Residential Development) Regulations 2021 (S.I. No. 716 of 2021), in effect as per reg. 2.
E155
Power pursuant to section exercised (4.11.2021) by Planning and Development (Amendment) (No. 3) Regulations 2021 (S.I. No. 588 of 2021).
E156
Power pursuant to section exercised (15.01.2021) by Planning and Development (Amendment) Regulations 2021 (S.I. No. 9 of 2021).
E157
Power pursuant to section exercised (16.11.2018) by Planning and Development (Fees) Regulations 2018 (S.I. No. 501 of 2018).
E158
Power pursuant to section exercised (10.09.2015) by Planning and Development (Amendment) (No. 3) Regulations 2015 (S.I. No. 387 of 2015).
E159
Power pursuant to section exercised (16.07.2015) by Planning and Development (Amendment) (No. 2) Regulations 2015 (S.I. No. 310 of 2015), in effect as per reg. 2.
E160
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E161
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011 (S.I. No. 476 of 2011).
E162
Power pursuant to section exercised (31.03.2007) by Planning and Development (No. 2) Regulations 2007 (S.I. No. 135 of 2007).
E163
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03 2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
E164
Power pursuant to section exercised (11.03.2002) by Planning and Development Regulations 2002 (S.I. No. 70 of 2002).
E165
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Permission for development.
34.—(1) Where—
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it.
F322[(1A) Where an application to a planning authority is required to have been accompanied by an F323[environmental impact assessment report]:
(a) The planning authority shall cause to be published in one or more newspapers circulated in the area and/or by electronic means, a notice informing the public of such a decision of the planning authority.
(b) The notice shall state that the applicant and any person who made submissions or observations in writing to the planning authority in relation to the planning application in accordance with section 37(1) may appeal such a decision to the Board.
(c) The notice shall further state that a person may question the validity of any decision of the planning authority by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(d) The notice shall further state that a person may question the validity of any decision on an appeal by the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(e) The notice shall identify where practical information on the appeal and review mechanisms can be found.]
F324[(1B) Where a planning authority receives an application for permission to which section 32A(1) applies it shall notify the elected members of the planning authority of the making of the application, of where the application is available for inspection, and of such other information as may be prescribed.]
(2) (a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—
(i) the provisions of the development plan,
F325[(ia) any guidelines issued by the Minister under section 28,]
(ii) the provisions of any special amenity area order relating to the area,
(iii) any European site or other area prescribed for the purposes of section 10(2)(c),
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,
(v) the matters referred to in subsection (4), F326[…]
F327[(va) previous developments by the applicant which have not been satisfactorily completed,
(vb) previous convictions against the applicant for non-compliance with this Act, the Building Control Act 2007 or the Fire Services Act 1981, and]
(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder.
F325[(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.]
(b) In considering its decision in accordance with paragraph (a), a planning authority shall consult with any other planning authority where it considers that a particular decision by it may have a significant effect on the area of that authority, and the authority shall have regard to the views of that other authority and, without prejudice to the foregoing, it shall have regard to the effect a particular decision by it may have on any area outside its area (including areas outside the State).
F325[(ba) Where specific planning policy requirements of guidelines referred to in subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.]
(c) F328[Subject to section 99F of the Environmental Protection Agency Act 1992,] and section 54 (as amended by section 257 of this Act) of the Waste Management Act, 1996, where an application under this section relates to development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, a planning authority shall take into consideration that the control of emissions arising from the activity is a function of the Environmental Protection Agency.
F325[(d) In this subsection “specific planning policy requirements” means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.]
(3) A planning authority shall, when considering an application for permission under this section, have regard to—
(a) in addition to the application itself, any information relating to the application furnished to it by the applicant in accordance with the permission regulations,
(b) any written submissions or observations concerning the proposed development made to it in accordance with the permission regulations by persons or bodies other than F329[the applicant, and]
F330[(c) where an application for permission relates to a residential development comprising 10 or more houses—
(i) any information available to the planning authority, or furnished to it by the applicant, concerning implementation by the applicant of any housing development in the previous 5 years, and
(ii) an assessment by the planning authority of the likelihood of the proposed development being implemented within the appropriate period sought, being the appropriate period within the meaning provided for by section 40(3).]
F325[(3A) In determining an application for permission that relates to an existing planning permission for a residential multi-unit development (within the meaning of section 1 of the Multi-Unit Development Act 2011) and where the purpose of the application for permission is to take account of specific planning policy requirements (within the meaning given by subsection (2)(d)) of new or revised guidelines issued by the Minister under section 28 with regard to the previously permitted development, the planning authority concerned or the Board (as the case may be) shall, notwithstanding section 34(2)(a), be restricted in its determination of the application to considering the modifications proposed by the applicant.
(3B) Notwithstanding section 37, no appeal shall be made to the Board in respect of the determination by the planning authority concerned of an application to which subsection (3A) relates unless it would relate to a materially significant change to the approved external appearance of the proposed development.]
F324[(3C) In determining an application for permission that relates to a development in respect of a part of which permission has previously been granted—
(a) under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016, or
(b) on foot of an application in accordance with section 32A, the planning authority concerned shall, notwithstanding section 34(2)(a), be restricted in its determination of the application, other than in respect of any assessment of the effects of the proposed development on the environment, to considering the modifications proposed by the applicant to the previously permitted development and for the purposes of determining such an application the reference in subsection (6) to “the development concerned” shall be read as a reference to “the modifications to the previously permitted development”.]
(4) Conditions under subsection (1) may, without prejudice to the generality of that subsection, include all or any of the following—
F331[(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant if the imposition of such conditions appears to the planning authority—
(i) to be expedient for the purposes of or in connection with the development authorised by the permission, or
(ii) to be appropriate, where any aspect or feature of that adjoining, abutting or adjacent land constitutes an amenity for the public or a section of the public, for the purposes of conserving that amenity for the public or that section of the public (and the effect of the imposition of conditions for that purpose would not be to burden unduly the person in whose favour the permission operates);]
(b) conditions for requiring the carrying out of works (including the provision of facilities) which the planning authority considers are required for the purposes of the development authorised by the permission;
(c) conditions for requiring the taking of measures to reduce or prevent—
(i) the emission of any noise or vibration from any structure or site comprised in the development authorised by the permission which might give reasonable cause for annoyance either to persons in any premises in the neighbourhood of the development or to persons lawfully using any public place in that neighbourhood, or
(ii) the intrusion of any noise or vibration which might give reasonable cause for annoyance to any person lawfully occupying any such structure or site;
(d) conditions for requiring provision of open spaces;
(e) conditions for requiring the planting, maintenance and replacement of trees, shrubs or other plants or the landscaping of structures or other land;
(f) conditions for requiring the satisfactory completion within a specified period, not being less than 2 years from the commencement of any works, of the proposed development (including any roads, open spaces, car parks, sewers, watermains or drains or other public facilities), where the development includes the construction of 2 or more houses;
(g) conditions for requiring F329[the giving and maintaining of adequate security] for satisfactory completion of the proposed development;
(h) conditions for determining the sequence and timing in which and the time at which works shall be carried out;
(i) conditions for the maintenance or management of the proposed development (including the establishment of a company or the appointment of a person or body of persons to carry out such maintenance or management);
(j) conditions for the maintenance, until taken in charge by the local authority concerned, of roads, open spaces, car parks, sewers, watermains or drains and other public facilities or, where there is an agreement with the local authority in relation to such maintenance, conditions for maintenance in accordance with the agreement;
(k) conditions for requiring the provision of such facilities for the collection or storage of recyclable materials for the purposes of the proposed development;
(l) conditions for requiring construction and demolition waste to be recovered or disposed of in such a manner and to such extent as may be specified by the planning authority;
(m) conditions for requiring the provision of roads, including traffic calming measures, open spaces, car parks, sewers, watermains or drains, facilities for the collection or storage of recyclable materials and other public facilities in excess of the immediate needs of the proposed development, subject to the local authority paying for the cost of the additional works and taking them in charge or otherwise entering into an agreement with the applicant with respect to the provision of those public facilities;
(n) conditions for requiring the removal of any structures authorised by the permission, or the discontinuance of any use of the land so authorised, at the expiration of a specified period, and the carrying out of any works required for the re-instatement of land at the expiration of that period;
(o) conditions in relation to appropriate naming and numbering of, and the provision of appropriate signage for, the proposed development;
(p) conditions for requiring, in any case in which the development authorised by the permission would remove or alter any protected structure or any element of a protected structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest—
(i) the preservation by a written and visual record (either measured architectural drawings or colour photographs and/or audio-visual aids as considered appropriate) of that structure or element before the development authorised by the permission takes place, and
(ii) where appropriate, the architectural salvaging of any element, or the re-instatement of any element in a manner specified by the authority;
(q) conditions for regulating the hours and days during which a business premises may operate.
F332[(5) The conditions under subsection (1) may provide that points of detail relating to a grant of permission be agreed between the planning authority and the person carrying out the development and, accordingly—
(a) where for that purpose that person has submitted to the planning authority concerned such points of detail, then that authority shall, within 8 weeks of those points being so submitted, or such longer period as may be agreed between them in writing, either—
(i) reach agreement with that person on those points, or
(ii) where that authority and that person cannot so agree on those points, that authority may—
(I) advise that person accordingly in writing, or
(II) refer the matter to the Board for its determination,
and, where clause (I) applies, that person may, within 4 weeks of being so advised, refer the matter to the Board for its determination,
or
(b) where none of the events referred to in subparagraph (i) or in clause (I) or (II) of subparagraph (ii) occur within those 8 weeks or such longer period as may have been so agreed, then that authority shall be deemed to have agreed to the points of detail as so submitted.]
(6) (a) In a case in which the development F333[concerned would contravene materially the development plan or local area plan], a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section, provided that the following requirements are complied with before the decision is made, namely—
(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission shall be published in at least one daily newspaper circulating in its area and the notice shall specifically state which objective of the development plan F327[or local area plan, as the case may be,] would be materially contravened by granting this permission,
F333[(ii) copies of the notice shall be given to each of the following—
(I) the applicant,
F327[(IA) the regional assembly for the area in which the planning authority is situated,]
(II) a prescribed body which has been notified of the application by the planning authority, and
(III) any person who has made a submission or observation in writing in relation to the development to which the application relates,]
(iii) any submission or observation as regards the making of a decision to grant permission and which is received by the planning authority not later than 4 weeks after the first publication of the notice shall be duly considered by the F333[authority]
F334[(iiia) not later than 6 weeks from the publication of the notice under subparagraph (i), the chief executive shall prepare a report for the members of the planning authority—
(I) stating the main reasons and considerations on which the proposal to grant permission is based,
(II) summarising the issues raised in any submissions or observations in accordance with subparagraph (iii), and
(III) advising the members of his or her opinion regarding the compliance or otherwise of the proposed development with any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister of the Government or with any regional spatial and economic strategy,
and the report shall be considered by the members before a resolution is passed under subparagraph (iv), and
(iv) a resolution shall be passed by the planning authority approving the proposal of the chief executive to grant permission.]
(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) that the number of the members of the planning authority voting in favour of the resolution is not less than three-quarters of the total number of the members of the planning authority or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient, and the requirement of this paragraph is in addition to and not in substitution for any other requirement applying in relation to such a resolution.
F335[(ba) Where a resolution referred to in paragraph (a) has been passed by a planning authority in accordance with paragraph (b), the planning authority shall—
(i) send to the regional assembly for the area and the Office of the Planning Regulator a copy of the notice under paragraph (a) that relates to the resolution, and
(ii) at the same time, inform the regional assembly for the area and the Office of the Planning Regulator in writing that the resolution was passed.]
(c) F336[…]
(d) F336[…]
(7) F336[…]
(8) (a) Subject to paragraphs (b), (c), (d) and (e), where—
(i) an application is made to a planning authority in accordance with the permission regulations for permission under this section, and
(ii) any requirements of those regulations relating to the application are complied with,
a planning authority shall make its decision on the application within the period of 8 weeks beginning on the date of receipt by the planning authority of the application.
F337[(b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in accordance with the permission regulations requiring the applicant to give to the authority further information or to produce evidence in respect of the application, the authority shall make its decision on the application as follows:
(i) within 4 weeks of the notice being complied with, or
(ii) F338[if, within the period specified in subparagraph (i), in relation to further information] given or evidence produced in compliance with the notice, the planning authority—
(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
(II) gives notice accordingly to the applicant,
within 4 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority.
(c) Where, in the case of a planning application accompanied by an F339[environmental impact assessment report] or a Natura impact statement, a planning authority serves a notice referred to in paragraph (b), the authority shall make its decision as follows:
(i) within 8 weeks of the notice being complied with, or
(ii) F338[if, within the period specified in subparagraph (i), in relation to further information] given or evidence produced in compliance with the notice, the planning authority—
(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
(II) gives notice accordingly to the applicant,
within 8 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority,]
F340[(ca) F341[Where an environmental impact assessment report] is submitted to a planning authority under section 172(1C), or where a Natura impact statement is submitted to a planning authority under section 177T (5), the planning authority shall make its decision on the application as follows—
(i) within 8 weeks commencing on the date on which the F342[environmental impact assessment report] or Natura impact statement, as the case may be, and a copy of the relevant public notice required in accordance with regulations under this Act, is received by the planning authority, or
(ii) where a planning authority, within 8 weeks of the receipt of an F343[environmental impact assessment report submitted] under section 172(1C) or a Natura impact statement under section 177T(5), serves notice in accordance with regulations under this Act requiring the applicant to give to the authority further information in relation F344[to the environmental impact assessment report] or Natura impact statement, as the case may be—
(I) F345[within 8 weeks, in the case of further information in relation to the environmental impact assessment report, and within 4 weeks, in the case of further information in relation to the Natura impact statement,] of the notice being complied with, or
(II) F338[if, within the period specified in clause (I), in relation to further information] given, the planning authority considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with regulations under this Act, and gives notice accordingly to the applicant, F346[within 8 weeks, in the case of such further information given in relation to the environmental impact assessment report, and within 4 weeks, in the case of such further information given in relation to the Natura impact statement,] beginning on the day on which notice of that publication is given by the applicant to the planning authority.]
(d) Where a notice referred to in subsection (6) is published in relation to the application, the authority shall make its decision within the period of 8 weeks beginning on the day on which the notice is first published.
(e) Where, in the case of an application for permission for development that—
(i) would be likely to increase the risk of a major accident, or
(ii) is of such a nature as to be likely, if a major accident were to occur, and, having regard to all the circumstances, to cause there to be serious consequences,
a planning authority consults, in accordance with the permission regulations, with a prescribed authority for the purpose of obtaining technical advice regarding such risk or consequences, the authority shall make a decision in relation to the application within 4 weeks beginning on the day on which the technical advice is received.
F347[(f) (i) Where a planning authority has failed to make a decision in relation to an application within the period specified in paragraph (a), (b), (c), (d) or (e) as appropriate (referred to in this paragraph as the “first period”) and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the authority shall proceed to make the decision notwithstanding that the first period has expired.
(ii) Where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant.
(iii) Where a planning authority fails to make a decision within a period of 12 weeks after the expiry of the first period a decision (referred to in this paragraph as the “deemed decision”) of the planning authority to grant the permission shall be regarded as having been given on the last day of that period of 12 weeks.
(iv) Any person, who has made submissions or observations in writing in relation to the planning application to the planning authority, may at any time within the period of 4 weeks after the expiry of the period of 12 weeks referred to in subparagraph (iii), appeal the deemed decision.
(v) Subparagraphs (i) to (iv) shall not apply where there is a requirement under Part X or Part XAB to carry out an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment, in respect of the development relating to which the authority has failed to make a decision.
(vi) Where the planning authority has failed to make a decision in relation to development where an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment is required within the first period and becomes aware, whether through notification by the applicant or otherwise, that it has so failed—
(I) the authority shall proceed to make the decision notwithstanding that the first period has expired,
(II) where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant,
(III) provided that no notice under paragraph (b) or (c) was served on the applicant prior to the expiry of the first period, where a planning authority proceeds to make a decision under clause (I) in relation to an application, it may serve notice on the applicant, requiring the applicant to give to the authority further information or to produce evidence in respect of the application under paragraph (b) or (c), and paragraph (b) or (c) shall apply to such notice subject to any necessary modifications,
(IV) subject to service of a notice under paragraph (b) or (c) in accordance with clause (III), where a planning authority fails to make a decision before the expiry of the period of 12 weeks beginning on the day immediately after the day on which the first period expires, the authority shall, subject to clause (V), pay the appropriate sum to the applicant, and shall pay a further such sum to the applicant where it fails to make a decision before the expiry of each subsequent period of 12 weeks beginning immediately after the preceding 12 week period,
(V) not more than 5 payments of the appropriate sum shall be made by a planning authority to an applicant in respect of the failure by the authority to make a decision in relation to an application,
(VI) where a planning authority makes a decision in relation to an application more than one year after the expiration of the first period the authority, before making the decision—
(A) notwithstanding that notice has been previously published in relation to the application, shall require the applicant to publish additional such notice concerning the planning application in accordance with the permission regulations (and the planning authority shall refund the costs of so publishing to the applicant),
(B) notwithstanding that notice of the application has previously been given to prescribed bodies, shall give additional such notice in accordance with the permission regulations, and
(C) notwithstanding anything contained in paragraph (b) or (c), or that the authority has previously been given further information or evidence under those paragraphs may require the applicant to give to the authority further information or to produce evidence in respect of the application as the authority requires and paragraph (b) or (c), as appropriate, shall apply to such additional request subject to any necessary modifications,
and the planning authority shall consider any submissions made in accordance with the Regulations following on such additional notices, or additional further information or evidence produced under this clause.
(vii) Any payment or refund due to be paid under this paragraph shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.
(viii) In this paragraph, “appropriate sum” means a sum which is equal to the lesser amount of 3 times the prescribed fee paid by the applicant to the planning authority in respect of his or her application for permission or €10,000.]
(9) Where, within the period of 8 weeks beginning on the date of receipt by the planning authority of the application, the applicant for a permission under this section gives to the planning authority in writing his or her consent to the extension of the period for making a decision under subsection (8), the period for making the decision shall be extended for the period consented to by the applicant.
(10) (a) F348[Subject to paragraph (c) and without prejudice to section 172(1I), a decision] given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in—
(i) the reports on a planning application to the F349[chief executive] (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.
F350[(c) Where, in the case of an application for planning permission accompanied by an environmental impact assessment report, a decision by a planning authority under this section or by the Board under section 37, as the case may be—
(i) to impose a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report) in relation to the grant of permission is materially different, in relation to the terms of such condition, from the recommendation in—
(I) the reports on a planning application to the chief executive (or such other person delegated to make the decision) in the case of a planning authority, or
(II) a report of a person assigned to report on an appeal on behalf of the Board,
as the case may be, a statement under paragraph (a) shall indicate the main reasons for not accepting, or for varying, as the case may be, the recommendation in the reports or report in relation to such condition referred to in clause (I) or (II), as the case may be,
(ii) to grant, subject to or without conditions, permission, such permission shall include or refer to a statement that the planning authority or the Board, as the case may be, is satisfied that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision, and
(iii) shall include a summary of the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.]
(11) (a) Where the planning authority decides under this section to grant a permission—
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals—
(I) it is withdrawn, or
(II) it is dismissed by the Board pursuant to section 133 or 138, or
(III) in relation to it a direction is given to the authority by the Board pursuant to section 139, and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.
(b) Where the Board decides on appeal under section 37 to grant a permission, it shall make the grant as soon as may be after the decision.
F333[(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out—
(a) an environmental impact assessment,
(b) a determination as to whether an environmental impact assessment is required, or
(c) an appropriate assessment.
(12A) For the purposes of subsection (12), if an application for permission had been made in respect of the following development before it was commenced, the application shall be deemed not to have required a determination referred to at subsection (12)(b):
(a) development within the curtilage of a dwelling house, for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;
(b) modifications to the exterior of a building.
(12B) Where a planning authority refuses to consider an application for permission under subsection (12) it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.
(12C) Subject to subsections (12) and (12A), an application for development of land in accordance with the permission regulations may be made for the retention of unauthorised development, and this section shall apply to such an application, subject to any necessary modifications.]
(13) A person shall not be entitled solely by reason of a permission under this section to carry out any development.
Annotations
Amendments:
F322
Inserted (13.07.2010) by European Communities (Public Participation) Regulations 2010 (S.I. No. 352 of 2010), reg. 10(a).
F323
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 2, in effect as per reg. 2(1).
F324
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 5(a), (b), S.I. No. 715 of 2021.
F325
Inserted (29.12.2015) by Planning and Development (Amendment) Act 2015 (61/2015), s. 3(a)-(e), commenced on enactment.
F326
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(1), S.I. No. 436 of 2018.
F327
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(1), (5)(a), (b), S.I. No. 436 of 2018.
F328
Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 61, S.I. No. 393 of 2004.
F329
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(2), (3), S.I. No. 436 of 2018.
F330
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(2), S.I. No. 436 of 2018.
F331
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 8(1), S.I. No. 525 of 2006.
F332
Substituted (17.12.2021) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(4), S.I. No. 714 of 2021.
F333
Substituted (23.03.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(a)(i)-(iii) and (c), S.I. No. 132 of 2011.
F334
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 72, S.I. No. 214 of 2014.
F335
Inserted (3.04.2019) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(5)(c), S.I. No. 133 of 2019, art. 2(c).
F336
Deleted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 refs. 73, 74, S.I. No. 214 of 2014.
F337
Substituted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(b)(i), S.I. No. 475 of 2011.
F338
Substituted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 5(c), S.I. No. 715 of 2021.
F339
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table item ref. no. 3, in effect as per reg. 2(1).
F340
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 5.
F341
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 4, in effect as per reg. 2(1).
F342
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 5, in effect as per reg. 2(1).
F343
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 6, in effect as per reg. 2(1).
F344
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 7, in effect as per reg. 2(1).
F345
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(a)(i), in effect as per reg. 2(1).
F346
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(a)(ii), in effect as per reg. 2(1).
F347
Substituted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 23(b)(ii), S.I. No. 475 of 2011.
F348
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(b)(i), in effect as per reg. 2(1).
F349
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 23(6), S.I. No. 436 of 2018.
F350
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 8(b)(ii), in effect as per reg. 2(1).
F351
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(c), not commenced as of date of revision.
F352
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(a), not commenced as of date of revision.
F353
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(b), not commenced as of date of revision, subject to transitional provision in s. 41(8), not commenced as of date of revision.
F354
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(c), not commenced as of date of revision, subject to transitional provision in s. 41(8), not commenced as of date of revision.
Modifications (not altering text):
C51
Prospective affecting provision: subs. (2)(ca) inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(c), not commenced as of date of revision.
F351[(ca) Where an application under this section relates to development which comprises or is for the purposes of an activity for which an abstraction licence is required, a planning authority shall take into consideration that the control of abstractions is a function of the Environmental Protection Agency.]
C52
Prospective affecting provision: subs. (4A) inserted, subs. (12) substituted and subs. (12A) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 12(a)-(c), not commenced as of date of revision.
F352[(4A) Notwithstanding subsection (1), where a planning authority grants permission for a development on foot of an application accompanied by an opinion provided by the planning authority under section 32I(2) the permission shall include a condition in respect of any detail of the development that was not confirmed at the time of the application requiring—
(a) the actual detail of the development to fall within specified options, parameters or a combination of options and parameters, and
(b) the applicant to notify the planning authority in writing, by such date prior to the commencement of the development, or prior to the commencement of the part of the development to which the detail relates, as the Minister may prescribe, of the actual detail of the development.]
…
F353[(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where it decides that either or both of the following was required or is required in respect of the development:
(a) an environmental impact assessment;
(b) an appropriate assessment.]
(12A) For the purposes of subsection (12), F354[an application in respect of the following development shall be deemed not to have required, and not to require, a determination as to whether an environmental impact assessment is required]:
…
C53
Application of section restricted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 10(5)(a), S.I. No. 270 of 2017.
Supplemental provisions to section 9
10. …
(5)(a) No permission under section 34 of the Act of 2000 shall be required for any development in respect of which approval has been granted under section 9.
…
C54
Certain functions transferred to Cork City Council as a result of the Cork City and Council areas boundary alteration (31.01.2019) by Local Government Act 2019 (1/2019), s. 31, S.I. No. 20 of 2019.
Planning applications and development contribution schemes
31. (1) For the purposes of the Act of 2000 or any instrument under that Act and subject to subsection (2), the county council shall, after the transfer day, be the planning authority in relation to any planning application made before the transfer day in respect of development or proposed development in the relevant area.
(2) (a) Subject to paragraph (b), the functions of a planning authority under the Act of 2000 shall, as respects—
(i) a decision under section 34 of that Act, or
(ii) a determination under section 37 of that Act,
made before the transfer day in relation to development or proposed development in the relevant area, be performable from that day by the city council.
(3) Any contribution—
(a) paid before the transfer day in accordance with section 49 of the Act of 2000 for the purpose of any public infrastructure service or project in the relevant area, and
(b) vested in the city council under Part 2,
shall be expended by the city council for that purpose.
(4) Any development contribution scheme under section 48 of the Act of 2000 or supplementary development contribution scheme under section 49 of that Act made by the city council shall, from the transfer day, apply to the relevant area as it applies to the rest of the functional area of the city council.
…
C55
Effect of grant of permission under section clarified (24.12.2015) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), section 28(2), commenced on enactment.
Applications under section 34 of Act of 2000
28. (1) Where a development to which a certificate relates was substantially commenced or at a more advanced stage of completion on the dissolution day, but was not completed on that date, an application may be made to the Council for permission under section 34 of the Act of 2000 for so much of the development as was not completed on that date.
(2) Where a permission is granted under section 34 of the Act of 2000 in respect of a development in relation to which an application was made under subsection (1), without prejudice to anything validly done in accordance with the certificate concerned prior to the grant of permission, that grant of permission shall have effect, and the certificate shall cease to have effect, in respect of so much of the development as was not completed on the dissolution day.
C56
Construction of reference to ‘planning authority’ under subs. (4)(m) extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 55(5)(b), S.I. No. 846 of 2007.
Connection to a water supply.
55. — …
(5) …
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.
…
C57
Construction of reference to ‘planning authority’ under subs. (4)(m) extended (31.12.2007) by Water Services Act 2007 (30/2007), s. 61(6)(b), S.I. No. 846 of 2007.
Waste water connections.
61. — …
(6) …
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.
…
C58
Application of section restricted and matters to be considered provided (27.09.2007) by Waste Water Discharge (Authorisation) Regulations 2007 (S.I. No. 684 of 2007), regs. 41(1) and 43(1).
Limitation of Act of 2000
41. (1) Subject to Regulation 42(2), and notwithstanding sections 34, 37, 37E, 175 and 226 of the Act of 2000, or any other provision of that Act, where, under these Regulations, an authorisation has been granted in respect of a waste water discharge from a waste water works—
(a) a planning authority, or An Bord Pleanála, where it decides to grant a permission under section 34, 37 or 37E on appeal or otherwise, as the case may be, of the said Act, or
(b) An Bord Pleanála, where it decides to grant an approval under section 175 or 226 of the said Act,
in respect of a proposed development that involves a waste water discharge from a waste water works, shall not subject the permission or approval, as the case may be, to conditions which are for the purposes of controlling the waste water discharge.
(2) Where a permission or approval under the Act of 2000 has been subjected to conditions, other than conditions as referred to in paragraph (3)(b), that are for the purposes of controlling discharges from a development as described in paragraph (1), those conditions shall cease to have effect upon the granting of an authorisation under these Regulations in respect of the waste water discharges concerned.
…
Consideration of proposals by planning authorities and An Bord Pleanála
43. (1) Where a planning authority or An Bord Pleanála is considering an application for permission, an appeal or an application for approval under section 34, 37, 37E, 175 or 226 of the Act of 2000 for development being development which involves the disposal of waste water to a waste water works, or is considering such a development under section 179 of the Act of 2000, the planning authority or the Board, as the case may be, shall consider whether the discharge of waste water from the proposed development, in conjunction with existing discharges to the receiving waters, would cause non-compliance with the combined approach or, in situations where there is existing non-compliance, would result in a significant breach of the combined approach.
…
C59
Application of subs. (8) restricted (11.07.2007) by Roads Act 2007 (34/2007), s. 8(4), commenced on enactment.
Declaration of motorways.
8. — …
(4) Notwithstanding any other enactment, neither a planning authority or An Bord Pleanála shall decide to grant or grant planning permission nor shall a decision by such be regarded as having been given under section 34(8) of the Planning and Development Act 2000 in respect of the developments referred to in section 46 of the Principal Act in respect of a national road or a proposed road development for the construction of a national road declared to be a motorway under subsection (1).
C60
Planning authority enabled to attach conditions to certain applications under section as provided (7.12.2005) by European Communities (Waste Water Treatment) (Prevention of Odours and Noise) Regulations 2005 (S.I. No. 787 of 2005), reg. 5.
5. A planning authority shall, where granting permission for a development in accordance with section 34 of the Act of 2000 consisting of the provision of a waste water treatment plant, attach such conditions to the permission as may be in the opinion of the authority and having regard to the function of the Agency under Article 4 of these Regulations, necessary to ensure that the plant is so operated and maintained as to ensure that it avoids causing nuisance through odours or noise.
C61
Application of section restricted by Environmental Protection Agency Act 1992 (7/1992), s. 99F(1) and (9) as inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004 and as amended (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 79, S.I. No. 475 of 2011.
Appliction of other Acts.
99F.—(1) Notwithstanding section 34 of the Act of 2000, or any other provision of that Act, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 [or substitute consent, within the meaning of section 177A], of that Act in respect of any development comprising or for the purposes of the activity, subject the permission to conditions which are for the purposes of—
(a) controlling emissions from the operation of the activity, including the prevention, elimination, limitation, abatement, or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation of the activity.
…
(9) Without prejudice to the preceding subsections, where a licence or revised licence under this Part is granted in relation to an activity and—
(a) a permission under section 34 of the Act of 2000, or
…
has been granted in respect of the same activity or in relation to development for the purposes of it, any conditions attached to that permission or contained in that lease, as the case may be, shall, so far as they are for the purposes of the prevention, elimination, limitation, abatement or reduction of emissions to the environment, cease to have effect.
C62
Application of subss. (6) and (8) restricted by Waste Management Act 1996 (10/1996), s. 22(10B) as inserted (17.07.2001) by Waste Management (Amendment) Act 2001 (36/2001), s. 4, commenced on enactment.
Waste management plans.
22.— …
(10B) (a) Where a planning authority proposes to grant permission under Part III of the Planning and Development Act, 2000, for development which is consistent with the provisions (including any objectives contained therein) of, and is necessary for the proper implementation of, the waste management plan in force in relation to the authority’s functional area, but, in the opinion of the manager of the authority, would contravene materially any other objective of the development plan in force in relation to that area, the manager shall—
(i) publish notice of the intention of the authority to grant the permission in one or more newspapers circulating in that area,
(ii) give a copy of the notice to the applicant for permission and to any person who has made a submission or observation in writing in relation to the development to which the application relates in accordance with any regulations made under the Planning and Development Act, 2000.
(b) Any submission or observation in writing in relation to the making of a decision to grant the permission concerned which is received by the planning authority not later than 4 weeks after the publication of the notice in accordance with paragraph (a) shall be considered by the manager of the authority.
(c) Following consideration of any submissions or observations received in accordance with paragraph (b), the manager of the planning authority may, subject to, and in accordance with, the provisions of the Planning and Development Act, 2000 (apart from the amendments of them effected by this section), decide to grant the permission, with or without conditions, or to refuse the permission.
(d) Section 34(6) of the Planning and Development Act, 2000, shall not apply to applications for permission referred to in paragraph (a).
(e) Notwithstanding section 34(8) of the Planning and Development Act, 2000, where a notice referred to in paragraph (a) is published in relation to an application for permission for development, the manager of the planning authority concerned shall make his or her decision in relation to the application within the period of 8 weeks beginning on the day on which the notice is first published.
…
Editorial Notes:
E166
In subs. (10), the replacement of “manager” by “chief executive” (above) is duplicated (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. no. 50, S.I. No. 436 of 2018.
E167
Approving a proposal of the chief executive to grant permission for the development of land which would contravene materially the development plan or local area plan under section is a reserved function of local authorities or municipal district members as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 2 ref. 11 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 21(3), (4) and sch. 3, S.I. No. 214 of 2014.
E168
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03.2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
E169
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E170
Previous affecting provision: subs. (5) amended (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 8(2), S.I. No. 525 of 2006; subs. (5) substituted (17.12.2021) as per F-note above.
E171
Previous affecting provision: subs. (7) amended(1.01.2002) by Local Government Act 2001 (37/2001), s. 5(3) and sch. 4, S.I. No. 588 of 2001; deleted as per F-note above.
E172
Previous affecting provision: subs. (7)(c) amended (1.01.2002) by Local Government Act 2001 (37/2001), s. 5(3) and sch. 4, S.I. No. 588 of 2001; deleted as per F-note above.
F355[
Interpretation – sections 34B, 34C, 37R and 37S
34A. (1) Section 2 (other than section 2 (3) (b)) of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall apply to the interpretation of this section and sections 34B, 34C, 37R and 37S, paragraph 20C of the Fourth Schedule, and paragraph 17A of the Fifth Schedule, as such section 2 applies to the interpretation of that Act.
(2) In sections 34B and 34C, “noise mitigation measures” includes land-use planning and management measures, measures to reduce noise at source and noise abatement operational measures (other than operating restrictions) that do not restrict the capacity of the airport.]
Annotations
Amendments:
F355
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
F356[]
Supplementary provisions relating to proposed development at Dublin Airport
34B. (1)(a)(i) Where the planning authority receives an application under section 34 for development at the airport, it shall, as soon as is practicable after such receipt—
(I) give a copy of the application to the competent authority, and
(II) enter into consultations with the competent authority for the purposes of giving such assistance as the competent authority may require in order to enable the competent authority, within 4 weeks of the competent authority receiving such copy, to either form the opinion referred to in subparagraph (iii) or to conclude that it is not of that opinion.
(ii) The competent authority shall, where it concludes that it is not of the opinion referred to in subparagraph (iii), as soon as is practicable after it so concludes, give notice in writing of that conclusion to the planning authority.
(iii) The following provisions of this section apply where the competent authority, in considering the application, forms the opinion that the development—
(I) contains a proposal requiring the assessment for the need for a noise-related action, or
(II) indicates that a new operating restriction may be required.
(b) Subsections (1) to (3) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to the performance by the competent authority of its functions under this section.
(c) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions referred to in this section as those subsections apply to measures and restrictions referred to in those subsections.
(2) The competent authority shall, as soon as is practicable after it forms the opinion referred to in subsection (1)(a)(iii), give notice in writing to the planning authority of that opinion and the planning authority shall, as soon as is practicable after receiving the notice, consult with the competent authority in relation to, as appropriate, one or more of the following matters:
(a) any aspect of the development relating to noise that may arise in the operation of the development if it is carried out (including any such aspect relating to appropriate assessment or environmental impact assessment);
(b) any noise problem that would arise from the carrying out of the development as proposed, taking account of any noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the application and any further information subsequently sought by the relevant authority from the applicant in relation to those matters and given by the applicant to the planning authority and the competent authority;
(c) where a noise problem would arise from the carrying out of the development as proposed—
(i) any information on the application of the Balanced Approach to the consideration of the inclusion of noise mitigation measures or operating restrictions (if any), or any combination thereof, in the application and any further information subsequently sought by the relevant authority from the applicant in relation to those matters and given by the applicant to the planning authority and the competent authority,
(ii) whether noise mitigation measures or operating restrictions (if any), or any combination thereof, not proposed in the application are or is required and any information or plans subsequently sought by the relevant authority from the applicant in relation to such measures or restrictions, or combination thereof, as the case may be, and given by the applicant to the planning authority and the competent authority,
(iii) any information subsequently sought by the relevant authority from the applicant in relation to the application of the Balanced Approach to the noise mitigation measures or operating restrictions, or combination thereof, referred to in subparagraph (ii) and given by the applicant to the planning authority and the competent authority, and
(iv) subject to subsection (4), whether permission could, in so far as noise-related issues are concerned, be granted for the development subject to conditions specified by the competent authority relating to noise mitigation measures or operating restrictions (if any), or any combination thereof.
(3) (a) In subsection (2) and paragraph (b), ‘relevant authority’ means the planning authority or the competent authority.
(b) Where the applicant gives any information or plans referred to in subsection (2) to one relevant authority, the applicant shall, on the same date (or as soon as is practicable thereafter), give copies of such information or plans, as the case may be, to the other relevant authority.
(4) Notwithstanding any other provision of this Act, the planning authority shall neither decide to refuse permission for the development nor decide to grant such permission subject to or without conditions until it receives a notice under subsection (5) or (14)(a)(ii) from the competent authority in respect of the application.
(5) (a) Paragraph (b) applies where the competent authority is satisfied that permission should not be granted for the development for the reason that inadequate provision has been made in the application (or in any plans or further information, or both, subsequently given by the applicant to the planning authority and the competent authority) to deal with the noise problem that would arise from the carrying out of the development as proposed.
(b) The competent authority shall, as soon as is practicable after it is so satisfied, give a notice in writing to the planning authority, stating the competent authority’s reasons why it is so satisfied, and directing the planning authority to refuse permission for the development.
(c) The planning authority shall comply with a direction given to it under paragraph (b) as soon as is practicable after it receives the notice concerned referred to in that paragraph and shall incorporate such notice in its decision to refuse permission for the development.
(d) Notwithstanding that a refusal referred to in paragraph (c) arises from a direction given by the competent authority to the planning authority, such refusal and the reasons for it shall, for the purposes of section 37 as read with section 37S, be treated as the decision, or part of the decision, as appropriate, of the planning authority on the application, and the other provisions of this Act shall be construed accordingly.
(6) Subsection (7) applies where the competent authority has applied the Balanced Approach to the noise problem referred to in subsection (2) and, in accordance with the Balanced Approach, assessed the noise mitigation measures or operating restrictions (if any), or any combination thereof, that may be required to be introduced as part of the development, and whether or not such measures or restrictions, or combination thereof, as the case may be, are or is in addition to, or in replacement of, one or more—
(a) noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the application, or
(b) existing noise mitigation measures or operating restrictions (if any), or any combination thereof.
(7) The competent authority shall, as soon as it is practicable for it to do so, by notice in writing given to the applicant and copied to the planning authority—
(a) inform the applicant of the noise mitigation measures or operating restrictions (if any), or combination thereof, proposed to be required in a decision (if any) to grant permission for the development and its reasons for so proposing, and
(b) stating that the applicant may, within the period specified in the notice (being a period of not less than 4 weeks), make submissions or observations on such noise mitigation measures or operating restrictions (if any), or combination thereof, as the case may be, and on such reasons, including counterproposals, by notice in writing given to the competent authority and copied to the planning authority.
(8) The competent authority shall apply the Balanced Approach to its consideration of the counterproposals (if any) given to it by the applicant before the expiration of the period specified in the notice under subsection (7) concerned.
(9) Subject to subsection (10), the competent authority shall, as soon as is practicable after it complies with subsection (7) and, if applicable, subsection (8) and (at its discretion) having consulted with the applicant or any other person that it wishes to, in accordance with the Aircraft Noise Regulation and the Aircraft Noise (Dublin Airport) Regulation Act 2019, make, and publish on its website, a draft regulatory decision—
(i) on the noise mitigation measures or operating restrictions (if any), or combination thereof, that it proposes to direct the planning authority to include as conditions of the planning authority’s decision (if any) to grant permission for the development, or
(ii) that no such conditions are required to be included in the planning authority’s decision (if any) to grant permission for the development.
(10) The competent authority shall prepare, and publish on its website on the same date as the draft regulatory decision, a report in relation thereto which shall state the competent authority’s reasons for such decision and include therein, as appropriate:
(a) a summary of the data examined (including any data relating to appropriate assessment or environmental impact assessment);
(b) the noise abatement objective;
(c) the measures considered to address any noise problem;
(d) an evaluation of the cost-effectiveness of the various measures considered;
(e) the application of the Balanced Approach;
(f) the identification of additional or alternative measures (other than those proposed in the draft regulatory decision) that have been considered;
(g) particulars of any proposed noise mitigation measures and operating restrictions (if any) to be introduced;
(h) if applicable, the reasons for the proposed introduction of any noise mitigation measures and operating restrictions (if any);
(i) the relevant technical information in relation to any proposed noise mitigation measures and operating restrictions (if any) to be introduced;
(j) a non-technical summary of such of the matters concerned referred to in paragraphs (a) to (i).
(11) The competent authority shall, as soon as is practicable after it complies with subsections (9) and (10), publish, in a national newspaper, a notice—
(a) stating that the competent authority has—
(i) made a draft regulatory decision under subsection (9), and
(ii) prepared the related report under subsection (10),
(b) stating particulars of how persons may view or otherwise have access to the draft regulatory decision and related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours),
(c) inviting persons to make submissions or observations in writing (and to provide a return address with such submissions or observations) in the specified form (if any) on the draft regulatory decision or related report, or both, before the expiration of 14 weeks beginning on the date of publication of the notice in the national newspaper, and
(d) stating particulars of the addresses (which shall include an electronic address) to which such submissions or observations may be sent.
(12) (a) The competent authority shall, as soon as is practicable after it complies with subsections (9) and (10), give each of the applicant, the airport authority and the planning authority copies of the draft regulatory decision that it made under subsection (9) and the related report that it prepared under subsection (10).
(b) For the avoidance of doubt, it is hereby declared that the applicant, the airport authority and the planning authority may each make submissions or observations referred to in subsection (11)(c) in accordance with that subsection.
(13) The competent authority shall, as soon as is practicable after the expiration of the 14 weeks referred to in subsection (11)(c) and having regard to the submissions and observations (if any) referred to in that subsection received by it within such 14 weeks—
(a) make a regulatory decision consisting of the adoption by it of the draft regulatory decision made by it under subsection (9) without any amendments or with such amendments as it considers appropriate, and
(b) revise the related report prepared under subsection (11) to take into account such submissions and observations (if any) and such adoption and to state the competent authority’s reasons for such regulatory decision.
(14) The competent authority shall—
(a) as soon as is practicable after it complies with subsection (13)—
(i) publish on its website the regulatory decision it has adopted under subsection (13)(a) and the related report it has revised under subsection (13)(b), and
(ii) send a copy of such decision, together with a copy of the notice referred to in paragraph (b) (whether before or after the notice is published), to the applicant, the airport authority, the planning authority, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located and the return addresses of the persons who have made submissions or observations referred to in subsection (11)(c) in accordance with that subsection on the draft regulatory decision or related report concerned,
and
(b) as soon as is practicable after it complies with paragraph (a)(i), publish, in a national newspaper, a notice stating—
(i) that the competent authority has adopted a regulatory decision under subsection (13)(a),
(ii) that the competent authority has revised the related report under subsection (13)(b),
(iii) particulars of how persons may view or otherwise have access to such regulatory decision and such related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours), and
(iv) that a right of appeal to the Board against the regulatory decision exists under section 37 as read with section 37R.
(15) (a) The planning authority shall incorporate the competent authority’s regulatory decision under subsection (13)(a), the subject of the notice given to the planning authority under subsection (14)(a)(ii), and the competent authority’s reasons for such decision in the planning authority’s decision on the application and shall do so regardless of whether the planning authority’s decision is to refuse permission for the development or to grant permission for the development.
(b) Notwithstanding that a regulatory decision referred to in paragraph (a) is made by the competent authority, such decision and the reasons for it shall, for the purposes of section 37 as read with section 37R, be treated as the decision, or part of the decision, as appropriate, of the planning authority on the application, and the other provisions of this Act shall be construed accordingly.
(c) The planning authority shall make its decision on the application as soon as is practicable after it receives, pursuant to subsection (14)(a)(ii), a copy of the competent authority’s regulatory decision under subsection (13)(a).
(16) Subject to subsection (17), a noise mitigation measure to be introduced by virtue of a regulatory decision adopted under subsection (13)(a) shall—
(a) if no appeal under section 37 as read with section 37R is made, within the appropriate period referred to in section 37(1), against the planning authority’s decision on the application, come into effect on the expiration of such appropriate period, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(17) The competent authority may, by notice published on its website on the same date as the regulatory decision adopted under subsection (13)(a) is, pursuant to subsection (14)(a), also so published—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of a noise mitigation measure to be introduced by virtue of that decision, and
(b) specify the date, or the occurrence of the event, on which such noise mitigation measure shall come into effect.
(18) Subject to section 26 (b) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, the competent authority shall, in relation to an operating restriction to be introduced by virtue of a regulatory decision adopted under subsection (13)(a), take such steps as it considers appropriate to cause Article 8 of the Aircraft Noise Regulation to be complied with as soon as is practicable after it applies to such restriction.
(19) Subject to subsection (20), an operating restriction referred to in subsection (18) shall—
(a) come into effect on the day immediately following the day on which the operation of Article 8 of the Aircraft Noise Regulation ceases to further prevent the coming into effect of the operating restriction, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(20) The competent authority may, by notice published on its website at any time before the day first-mentioned in subsection (19)(a)—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of the operating restriction referred to in subsection (18), and
(b) specify the date, or the occurrence of the event, on which such operating restriction shall come into effect.
(21) Subsection (6) of section 34 shall not apply where the competent authority forms the opinion that a noise problem that would arise from the carrying out of the development as proposed would contravene materially the development plan or local area plan.]
Annotations
Amendments:
F356
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
F357[
Supplementary provisions relating to operating restriction included in planning permission
34C. (1) (a) The person in whose favour a relevant permission operates may, by virtue of this subsection and notwithstanding any other provision of this Act (including section 34), make an application under section 34 to the planning authority where the application is only for a relevant action to be taken.
(b) Section 34 and the other provisions of this Act shall be read with all necessary modifications to take account of the relevant application.
(c) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions referred to in this section as those subsections apply to measures and restrictions referred to in those subsections.
(2) The planning authority shall give the competent authority a copy of the relevant application and consult with the competent authority in relation to, as appropriate, one or more of the following matters:
(a) any noise problem that would arise from taking the relevant action as proposed (including any implications that would arise therefrom in relation to appropriate assessment or environmental impact assessment matters) and any further information subsequently sought by the relevant authority from the applicant in relation to such action and given by the applicant to the planning authority and the competent authority;
(b) where a noise problem would arise from taking the relevant action as proposed—
(i) any information in the relevant application on the application of the Balanced Approach to the relevant action and any further information or plans subsequently sought by the relevant authority from the applicant in relation to the relevant action or Balanced Approach and given by the applicant to the planning authority and the competent authority,
(ii) whether noise mitigation measures or operating restrictions (if any), or any combination thereof, not proposed in the relevant application are or is required and any information or plans subsequently sought by the relevant authority from the applicant in relation to such measures or restrictions, or combination thereof, as the case may be, and given by the applicant to the planning authority and the competent authority,
(iii) any information subsequently sought by the relevant authority from the applicant in relation to the application of the Balanced Approach to the noise mitigation measures or operating restrictions, or combination thereof, referred to in subparagraph (ii) and given by the applicant to the planning authority and the competent authority, and
(iv) subject to subsection (4), whether permission could be granted for the taking of the relevant action subject to conditions specified by the competent authority relating to noise mitigation measures or operating restrictions (if any), or any combination thereof.
(3) (a) In subsection (2) and paragraph (b), ‘relevant authority’ means the planning authority or the competent authority.
(b) Where the applicant gives any information or plans referred to in subsection (2) to one relevant authority, it shall, on the same date (or as soon as is practicable thereafter), give copies of such information or plans, as the case may be, to the other relevant authority.
(4) Where this section applies and notwithstanding any other provision of this Act, the planning authority shall neither decide to refuse the relevant application nor grant the relevant application subject to or without conditions until it receives a notice under subsection (5) or (15)(a)(ii) from the competent authority in respect of the relevant application.
(5) (a) Paragraph (b) applies where the competent authority is satisfied that permission should not be granted for the relevant application for the reason that inadequate provision has been made in the application (or in any plans or further information, or both, subsequently given by the applicant to the planning authority and the competent authority) to deal with the noise problem that would arise from the carrying out of the relevant action as proposed.
(b) The competent authority shall, as soon as is practicable after it is so satisfied, give a notice in writing to the planning authority, stating the competent authority’s reasons why it is so satisfied, and directing the planning authority to refuse the relevant application.
(c) The planning authority shall comply with a direction given to it under paragraph (b) as soon as is practicable after it receives the notice referred to in that paragraph and shall incorporate such notice in its decision to refuse the relevant application.
(d) Notwithstanding that a refusal referred to in paragraph (c) arises from a direction given by the competent authority to the planning authority, such refusal and the reasons for it shall, for the purposes of section 37 as read with section 37S, be treated as the decision of the planning authority on the relevant application, and the other provisions of this Act shall be construed accordingly.
(6) The planning authority shall, in determining the relevant application, consider whether taking the relevant action requires the reconsideration of any other aspect of the relevant permission and, after having consulted with the competent authority, may, in accordance with regulations made under section 33, request and consider further information from the applicant in that regard.
(7) Subsection (8) applies where the competent authority has applied the Balanced Approach to the noise problem referred to in subsection (2) and, in accordance with the Balanced Approach, assessed the noise mitigation measures or operating restrictions (if any), or any combination thereof, that may be required to be introduced, and whether or not such measures or restrictions, or combination thereof, as the case may be, are or is in addition to, or in replacement of, one or more—
(a) noise mitigation measures or operating restrictions (if any), or any combination thereof, proposed in the relevant action, or
(b) existing noise mitigation measures or operating restrictions, or combination thereof.
(8) The competent authority shall, as soon as it is practicable for it to do so, by notice in writing given to the applicant and copied to the planning authority—
(a) inform the applicant of the noise mitigation measures or operating restrictions (if any), or combination thereof, proposed to be required in a decision (if any) to grant the relevant application and its reasons for so proposing, and
(b) stating that the applicant may, within the period specified in the notice (being a period of not less than 4 weeks), make submissions or observations on such noise mitigation measures or operating restrictions (if any), or combination thereof, as the case may be, and on such reasons, including counterproposals, by notice in writing given to the competent authority and copied to the planning authority.
(9) The competent authority shall apply the Balanced Approach to its consideration of the counterproposals (if any) given to it by the applicant before the expiration of the period specified in the notice under subsection (8) concerned.
(10) Subject to subsection (11), the competent authority shall, as soon as is practicable after it complies with subsection (8) and, if applicable, subsection (9) and (at its discretion) having consulted with the applicant or any other person that it wishes to, in accordance with the Aircraft Noise Regulation and the Aircraft Noise (Dublin Airport) Regulation Act 2019, make, and publish on its website, a draft regulatory decision—
(i) on the noise mitigation measures or operating restrictions (if any), or combination thereof, that it proposes to direct the planning authority to include as conditions of the planning authority’s decision (if any) to grant the relevant application, or
(ii) that no such conditions are required to be included in the planning authority’s decision (if any) to grant the relevant application.
(11) The competent authority shall prepare, and publish on its website on the same date as the draft regulatory decision, a report in relation thereto which shall state the planning authority’s reasons for such decision and include therein, as appropriate:
(a) a summary of the data examined (including any data relating to appropriate assessment or environmental impact assessment);
(b) the noise abatement objective;
(c) the measures considered to address any noise problem;
(d) an evaluation of the cost-effectiveness of the various measures considered;
(e) the application of the Balanced Approach;
(f) the identification of additional or alternative measures (other than those proposed in the draft regulatory decision) that have been considered;
(g) particulars of any proposed noise mitigation measures and operating restrictions (if any);
(h) if applicable, the reasons for the proposed introduction of any noise mitigation measures and operating restrictions (if any);
(i) the relevant technical information in relation to any proposed noise mitigation measures and operating restrictions (if any);
(j) a non-technical summary of such of the matters concerned referred to in paragraphs (a) to (i).
(12) The competent authority shall, as soon as is practicable after it complies with subsections (10) and (11), publish, in a national newspaper, a notice—
(a) stating that the competent authority has—
(i) made a draft regulatory decision under subsection (10), and
(ii) prepared the related report under subsection (11),
(b) stating particulars of how persons may view or otherwise have access to the draft regulatory decision and related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours),
(c) inviting persons to make submissions or observations in writing (and to provide a return address with such submissions or observations) in the specified form (if any) on the draft regulatory decision or related report, or both, before the expiration of 14 weeks beginning on the date of publication of the notice in the national newspaper, and
(d) stating particulars of the addresses (which shall include an electronic address) to which such submissions or observations may be sent.
(13) (a) The competent authority shall, as soon as is practicable after it complies with subsections (10) and (11), give each of the applicant, the airport authority and the planning authority copies of the draft regulatory decision that it made under subsection (10) and the related report that it prepared under subsection (11).
(b) For the avoidance of doubt, it is hereby declared that the applicant, the airport authority and the planning authority may each make submissions or observations referred to in subsection (12)(c) in accordance with that subsection.
(14) The competent authority shall, as soon as is practicable after the expiration of the 14 weeks referred to in subsection (12)(c) and having regard to the submissions and observations (if any) referred to in that subsection received by it within such 14 weeks—
(a) make a regulatory decision consisting of the adoption by it of the draft regulatory decision made by it under subsection (10) without any amendments or with such amendments as it considers appropriate, and
(b) revise the related report prepared under subsection (11) to take into account such submissions and observations (if any) and such adoption and to state the competent authority’s reasons for such regulatory decision.
(15) The competent authority shall—
(a) as soon as is practicable after it complies with subsection (14)—
(i) publish on its website the regulatory decision it has adopted under subsection (14)(a) and the related report it has revised under subsection (14)(b), and
(ii) send a copy of such decision, together with a copy of the notice referred to in paragraph (b) (whether before or after the notice is published), to the applicant, the airport authority, the planning authority, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located and the return addresses of the persons who have made submissions or observations referred to in subsection (12)(c) in accordance with that subsection on the draft regulatory decision or related report concerned,
and
(b) as soon as is practicable after it complies with paragraph (a)(i), publish, in a national newspaper, a notice stating—
(i) that the competent authority has adopted a regulatory decision under subsection (14)(a),
(ii) that the competent authority has revised the related report under subsection (14)(b),
(iii) particulars of how persons may view or otherwise have access to such regulatory decision and such related report (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the competent authority during office hours), and
(iv) that a right to appeal to the Board against the regulatory decision exists under section 37 as read with section 37R.
(16) (a) The planning authority shall—
(i) incorporate the competent authority’s regulatory decision under subsection (14)(a), the subject of the notice given to the planning authority under subsection (15)(a)(ii), and the competent authority’s reasons for such decision in the planning authority’s decision on the application and shall do so regardless of whether the planning authority’s decision is to refuse the relevant application or to grant the relevant application, and
(ii) notwithstanding any other provision of this Act, if necessary, revoke, revoke and replace, or amend the terms of, a condition of the relevant permission in order to make the relevant permission compatible with that regulatory decision.
(b) Notwithstanding that a regulatory decision referred to in paragraph (a) is a decision made by the competent authority, such decision and the reasons for it shall, for the purposes of section 37 as read with section 37R, be treated as the decision of the planning authority on the relevant application, and the other provisions of this Act shall be construed accordingly.
(c) The planning authority shall make its decision on the application as soon as is practicable after it receives, pursuant to subsection (15)(a)(ii), a copy of the competent authority’s regulatory decision under subsection (14)(a).
(17) Subject to subsection (18), a noise mitigation measure to be introduced by virtue of a regulatory decision adopted under subsection (14)(a) shall—
(a) if no appeal under section 37 as read with section 37R is made, within the appropriate period referred to in section 37(1), against the planning authority’s decision on the application, come into effect on the expiration of such appropriate period, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(18) The competent authority may, by notice published on its website on the same date as the regulatory decision adopted under subsection (14)(a) is, pursuant to subsection (15)(a), also so published—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of a noise mitigation measure to be introduced by virtue of that decision, and
(b) specify the date, or the occurrence of the event, on which such noise mitigation measure shall come into effect.
(19) Subject to section 26 (b) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, the competent authority shall, in relation to an operating restriction to be introduced by virtue of a regulatory decision adopted under subsection (14)(a), take such steps as it considers appropriate to cause Article 8 of the Aircraft Noise Regulation to be complied with as soon as is practicable after it applies to such restriction.
(20) Subject to subsection (21), an operating restriction referred to in subsection (19) shall—
(a) come into effect on the day immediately following the day on which the operation of Article 8 of the Aircraft Noise Regulation ceases to further prevent the coming into effect of the operating restriction, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(21) The competent authority may, by notice published on its website at any time before the day first-mentioned in subsection (20)(a)—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of the operating restriction referred to in subsection (19), and
(b) specify the date, or the occurrence of the event, on which such operating restriction shall come into effect.
(22) In this Part, health aspects shall be assessed in accordance with Environmental Noise Directive and the European Communities (Environmental Noise) Regulations 2018 (S.I. No. 549 of 2018).
(23) In this section—
“relevant action”, in relation to a relevant operating restriction the subject of a relevant application, means—
(a) to revoke the operating restriction,
(b) to amend the terms of the operating restriction in the manner specified in the application,
(c) to replace the operating restriction with the alternative operating restriction specified in the application,
(d) to take an action referred to in paragraph (a), (b) or (c) together with introducing new noise mitigation measures or revoking, revoking and replacing, or amending the terms of, existing noise mitigation measures, or a combination thereof,
(e) if the relevant application relates to 2 or more relevant operating restrictions, to take any combination of any of the actions referred to in paragraphs (a) to (d), or
(f) to take an action referred to in paragraph (a), (b), (c), (d) or (e) together with revoking, revoking and replacing, or amending the terms of, a condition of the relevant permission;
“relevant application” means an application referred to in subsection (1)(a);
“relevant operating restriction”, in relation to a relevant permission, means an operating restriction included in that permission;
“relevant permission” means a permission granted under section 34—
(a) for development at the airport, and
(b) that includes an operating restriction.]
Annotations
Amendments:
F357
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 11, S.I. No. 403 of 2019.
Refusal of planning permission for past failures to comply.
F358[35.—(1) Where, having regard to—
(a) any information furnished pursuant to regulations made under section 33(2)(l),
(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a “previous permission”) granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,
(c) any information otherwise available to the planning authority concerning a substantial unauthorised development, or
(d) any information concerning a conviction for an offence under this Act,
the planning authority is satisfied that a person to whom this section applies is not in compliance with a previous permission or with a condition to which the previous permission is subject, has carried out a substantial unauthorised development, or has been convicted of an offence under this Act, the authority may form the opinion—
(i) that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with such permission if granted or with a condition to which such permission if granted would be subject, and
(ii) that accordingly planning permission should not be granted to the applicant concerned in respect of that development. ]
(2) In forming its opinion under subsection (1), the planning authority shall only consider those failures to comply with any previous permission, or with any condition to which that permission is subject, that are of a substantial nature.
(3) An opinion under this subsection shall not be a decision on an application for permission for the purposes of this Part.
F359[F358[(4) If the planning authority considers that there are good grounds for its being able to form the opinion under subsection (1) in relation to an application for permission in respect of the development concerned and, accordingly, to exercise the power under subsection (5) to refuse that permission, it shall serve a notice in writing on the applicant to that effect and that notice shall—
(a) specify the non compliance with a previous permission or condition of a previous permission, substantial unauthorised development, or conviction for an offence under this Act, as the case may be, that the authority intends to take into consideration with regard to the proposed exercise of that power, and
(b) invite the applicant to make submissions to the authority within a period specified in the notice as to why the applicant considers that the authority should not exercise that power (whether because the applicant contends that the views of the authority in relation to the failure to comply by the applicant or any other person to whom this section applies with any previous permission, or any condition to which it is subject, the carrying out of substantial unauthorised development or conviction for an offence under this Act, as the case may be, are incorrect or that there are not good grounds for forming the opinion under subsection (1)).]
(5) If the planning authority, having considered any submissions made to it in accordance with a notice under subsection (4), proceeds to form the opinion under subsection (1) in relation to the application concerned it shall decide to refuse to grant the permission concerned and notify the applicant accordingly.
(6) The applicant may, within 8 weeks from the receipt of that notification, notwithstanding sections 50 and 50A, apply, by motion on notice to the planning authority, to the High Court for an order annulling the planning authority’s decision and, on the hearing of such application, the High Court may, as it considers appropriate, confirm the decision of the authority, annul the decision and direct the authority to consider the applicant’s application for planning permission without reference to the provisions of this section or make such other order as it thinks fit.
(6A) If, in pursuance of subsection (6), the High Court directs the planning authority to consider the applicant’s application for planning permission without reference to the provisions of this section, the planning authority shall make its decision on the application within the period of 8 weeks from the date the order of the High Court in the matter is perfected but this subsection is subject to the provisions of section 34(8) as applied to the foregoing case by subsection (6B).
(6B) For the purposes of the foregoing case the provisions of section 34(8) shall apply with the following modifications:
(a) in paragraph (a) of section 34(8), after “paragraphs (b), (c), (d) and (e)”, there shall be inserted “and section 35(6A)”;
(b) for the reference in paragraph (b) of section 34(8) to “8 weeks of the receipt of a planning application” there shall be substituted “8 weeks of the date the order of the High Court in the matter is perfected”;
(c) in paragraph (f) of section 34(8), after “paragraph (a), (b), (c), (d) or (e)”, there shall be inserted “, the period specified in section 35(6A) or, as the case may be, the period specified in paragraph (b), (c), (d) or (e) as that paragraph is applied by virtue of section 35(6B)”; and
(d) any other necessary modifications.
(6C) No appeal shall lie to the Board from a decision of a planning authority to refuse to grant planning permission under subsection (5).]
(7) In this section, “a person to whom this section applies” means—
(a) the applicant for the permission concerned,
(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a “previous permission”) granted to the applicant or to any other person under F360[this Part or Chapter III of Part XXI,] or Part IV of the Act of 1963,
F361[(ba) a registered society under the Industrial and Provident Societies Acts 1893 to 2014 that—
(i) carried out a development pursuant to a previous permission,
(ii) carried out a substantial unauthorised development, or
(iii) has been convicted of an offence under this Act,
or, during any period to which subparagraph (i) or (ii) relates or to which any conviction under subparagraph (iii) relates, the registered society was, during that period, controlled by the applicant—
(I) where, pursuant to section 15 of the Friendly Societies and Industrial and Provident Societies (Miscellaneous Provisions) Act 2014, ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014, or
(II) as a shadow director within the meaning of section 2(1) of the Companies Act 2014,]
(c) in the case where the applicant for permission is a company—
(i) the company concerned is related to a company (within the meaning of section 140(5) of the Companies Act, 1990) which F358[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] or
(ii) the company concerned is under the same control as a company which carried out a development referred to in subsection (1)(b), where “control” has the same meaning as in section 26(3) of the Companies Act, 1990,
or
(d) a company which F358[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] which company is controlled by the applicant—
(i) where “control” has the same meaning as in section 26(3) of the Companies Act, 1990, or
(ii) as a shadow director within the meaning of section 27(1) of the Companies Act, 1990.
Annotations
Amendments:
F358
Substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 24(a), (b), S.I. No. 477 of 2010.
F359
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 9, S.I. No. 525 of 2006.
F360
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 12, S.I. No. 488 of 2022.
F361
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 24, S.I. No. 436 of 2018.
Editorial Notes:
E173
Previous affecting provision: subs. (1)(b) amended (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 24, S.I. No. 477 of 2010; substituted (1.10.2022) as per F-note above.
E174
Previous affecting provision: subs. (4) inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 9, S.I. No. 525 of 2006, substituted as per F-note above.
Outline permission.
36.—(1) An application under section 34 may be made to a planning authority in accordance with the permission regulations for outline permission for the development of land.
(2) Where outline permission is granted under section 34, that permission shall not operate to authorise the carrying out of any development to which the outline permission relates until a subsequent permission has been granted under that section.
(3) (a) Where outline permission has been granted by a planning authority, any subsequent application for permission must be made not later than 3 years beginning on the date of the grant of outline permission, or such longer period, not exceeding 5 years, as may be specified by the planning authority.
(b) The outline permission shall cease to have effect at the end of the period referred to in paragraph (a) unless the subsequent application for permission is made within that period.
(c) Sections 40, 41 and 42 shall not apply to the grant of an outline permission.
(4) Where an application for permission is made to a planning authority consequent on the grant of outline permission, the planning authority shall not refuse to grant permission on the basis of any matter which had been decided in the grant of outline permission, provided that the authority is satisfied that the proposed development is within the terms of the outline permission.
(5) No appeal may be brought to the Board under section 37 against a decision of a planning authority to grant permission consequent on the grant of outline permission in respect of any aspect of the proposed development which was decided in the grant of outline permission.
(6) In this section, “outline permission” means permission granted in principle under section 34 for the development of land subject to a subsequent detailed application for permission under that section.
Planning and Development Regulations
Further information. 45.
(1)
Where a planning authority receives an application to extend or extend further the appropriate period as regards a particular permission, the authority may, by notice in writing, require the applicant—
(a) to submit such further information as it may require to consider the application (including any
Footnote*** [i205]: Article 44F is inserted by article 6 of S.I. No. 457/2021 European Union (Planning) (Habitats, Birds and Environmental Impact) (No. 2) Regulations 2021
Footnote*** [i206]: Article 45 was substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
123
information regarding any estate or interest in or right over land), or
(b) to produce any evidence which it may reasonably require to verify any particulars or information given in or in relation to the application.
(2)
A planning authority shall not require an applicant who has complied with a requirement under sub-article (1) to submit any further information, particulars or evidence save as may be reasonably necessary to clarify the matters dealt with in the applicant’s response to the said requirement or to enable those matters to be considered or assessed, or save where information specified in Schedule 7A is requested pursuant to article 44(2)(b) or where information is required pursuant to article 44F(3).
(3)
Where an applicant does not comply with any requirement under this article within 4 weeks of such requirement, the planning authority shall refuse the application .
Notification of decision on application. 46.
Every notification given by a planning authority of a decision on an application to extend or extend further the appropriate period as regards a particular permission shall specify—
(a) the date of the permission and its reference number in the register,
(b) the location of the land, townland or postal address of the land or structure to which the permission relates (as may be appropriate),
(c) the development to which the decision relates,
(d) the date of the decision,
(e) the nature of the decision,
(f) in the case of a decision to extend or extend further the appropriate period, the additional period by which that period has been extended, _
(g) in the case of a decision to refuse to extend or extend further the appropriate period, the reasons for such refusal,
Footnote*** [i207]: Substituted by article 7 of S.I. No. 457/2021 European Union (Planning) (Habitats, Birds and Environmental Impact) (No. 2) Regulations 2021
Footnote*** [i208]: Article 46 substituted by article 8 of S.I. No. 685/2006 Planning and Development Regulations 2006
Footnote*** [i209]: Some text deleted by article 8(a) of S.I. No. 457/2021 European Union (Planning) (Habitats, Birds and Environmental Impact) (No. 2) Regulations 2021
Footnote*** [i210]: Punctuation amended by article 8(b) of S.I. No. 457/2021 European Union (Planning) (Habitats, Birds and Environmental Impact) (No. 2) Regulations 2021
124
(h) any screening determination made under article 44B(2), as the case may be (and, in the latter case, including, or referring to, the description, if any, provided under article 44A(2)),
(i) a determination made under article 44F,
(j) that the application and decision will be available for inspection, or purchase at a fee not exceeding the reasonable cost of making a copy, at its offices during its public opening hours and on the planning authority’s website,
(k) that a person may question the validity of any decision of the planning authority by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ), in accordance with sections 50 and 50A, and
(l) where practical information on the review mechanism can be found.
Publication of decision by planning authority and availability of documents 46A.
A planning authority shall, as soon as may be after making its decision on an application to extend or extend further the appropriate period as regards a particular permission-
(a) publish the notification referred to in article 46 on its website or in a newspaper circulating in the area where the relevant development is or would be situated, or both on that website and in such newspaper, and
(b) make the application, including any screening determination made under article 44B(2), as the case may be (and, in the latter case, including the description, if any, provided under article 44A(2)), and a determination made under article 44F, available for inspection, or purchase at a fee not exceeding the reasonable cost of making a copy, at its offices during its public opening hours and on the planning authority’s website.
Weekly List. 47.
(1)
The list made available by the planning authority in accordance with article 27 shall, in addition to the requirements of that article, include a list of any application under section 42 or section 42A of the Act to extend or extend further the appropriate period received by the authority during that week.
Footnote*** [i211]: Article 46A is inserted by article 9 of S.I. No. 457/2021 European Union (Planning) (Habitats, Birds and Environmental Impact) (No. 2) Regulations 2021
Footnote*** [i212]: Article 47 is inserted by article 8 of S.I. No. 406/2010 Planning and Development 2010
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(2)
A list referred to in sub-article (1) shall indicate in respect of each application received during the week to which the application relates-
(a) the name of the applicant,
(b) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate), and
(c) the date of receipt of the application.
(3)
The list made available by the planning authority in accordance with article 32 shall, in addition to the requirements of that article, include a list of any decision in respect of an application under section 42 or section 42A of the Act to extend or extend further the appropriate period made by the authority during that week.
(4)
A list referred to in sub-article (3) shall indicate in respect of each decision referred to in that sub-article-
(a) the name _ of the applicant,
(b) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(c) the date of the decision on the application,
(d) the nature of the decision made,
(e) a screening determination made under article 44B(2), as the case may be (and, in the latter case, including, or referring to, the description, if any, provided under article 44A(2)), and
(f) a determination made under article 44F.
Chapter 3A
Cases Material Contravention
AG (McGarry) v Sligo CC
The Attorney General (at the relation of Frank McGarry, Paddy O’Hara, Patricia Mulligan, Neil Cremin and John Hamilton) and Frank McGarry, Paddy O’Hara, Patricia Mulligan, Neil Cremin and John Hamilton (in their own right) Plaintiffs v. Sligo County Council Defendant
[1991]
1 I.R. 99
[1983 No. 4846P]
High Court 21st December 1983
High Court 11th February 1985
Supreme Court 17th February 1989
Supreme Court 5th May 1989
McWilliam J.
21st December 1983
This case arises out of a proposal by the defendant to establish a waste disposal dump in a sand and gravel pit (hereinafter called the quarry) situated in an area of considerable scenic beauty containing one of the largest concentrations of megalithic remains in Europe. It is probable that there are other megalithic remains under the surface of the ground and the surrounding areas may contain antiquarian items providing further information with regard to the prehistoric community and the start of agriculture. It is accepted by all the distinguished witnesses who gave evidence that this is an exceptionally important area archaeologically. The importance of the area has recently been emphasised to archaeologists throughout the world by work done by Professor Goran Burenholt at the site of the megalithic cemetery at Carrowmore between the years 1977 and 1982.
The quarry is separated from the cemetery by a public road but it is likely that the cemetery originally extended over the sites of the present road and quarry as there are records of two monuments having formerly existed on the site of the quarry. These two monuments appear to have been removed or destroyed about
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1 I.R. Attorney General (McGarry) v. Sligo County Council
McWilliam J. 103
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150 years ago. The nearest to the quarry still existing is about 41 or 42 feet from the edge of the quarry but across the road from it.
These proceedings were instituted by plenary summons dated the 11th July, 1983, issued on behalf of the five plaintiffs, other than the Attorney General, claiming an injunction restraining the defendant from using the quarry for the purposes of the proposed refuse dump. Alternatively, the plaintiffs seek an injunction restraining the defendant from using the quarry for waste disposal pending the preparation by the defendant of a plan for the disposal of waste in accordance with the provisions of the European Communities (Waste) Regulations, 1979. These plaintiffs also claim damages for nuisance and other relief. On the 25th July, 1983, on a motion by the plaintiffs, an interlocutory injunction was granted restraining the defendant or its servants or agents from entering the quarry for the purpose of developing, opening, preparing or using the same as a refuse dump or pithead. In November, 1983, the Attorney General was added as a party to the proceedings and an amended statement of claim and defence were delivered.
It is accepted that no material of archaeological interest is now to be found within the present boundaries of the quarry. The defendant, having become concerned about the inadequacies of its arrangements for waste disposal, was for some years prior to 1983 investigating the possibility of a site alternative to that shared by it with the Sligo Corporation at Finisklin in the harbour area of Sligo. This site had become completely filled and has for a considerable time been wholly unsatisfactory and the dump there has, to all intents and purposes, been unmanaged by either authority and is generally accepted to constitute a nuisance. The defendant also has control of a much smaller site at Ballymote and, although the dump there is better managed than the dump at Finisklin, it also is in a most unsatisfactory state. Several sites alternative to Finisklin were considered by the defendant but were rejected as unsuitable for one reason or another.
The quarry appears formerly to have been owned and worked by a Mr. Harte for many years. The ground immediately to the north of the quarry had also been quarried but this part belonged to a Mr. Devaney whose son, Mr. Bernard Devaney, gave evidence and stated that he got this ground from his father and reclaimed it about twenty years ago by filling it with builders’ waste to a depth of about ten feet, thereby bringing the surface to a height about twenty-five or thirty feet below the level of the road beside the quarry. Mr. Bernard Devaney also assisted Mr. Harte in working his quarry and eventually purchased it from him for a sum of £9,000 and became registered as owner of it in September, 1978. Mr. Devaney stated in evidence that in 1980 the Industrial Development Authority asked him to take industrial waste from two factories in Sligo because the Finisklin dump had then been closed for industrial waste. Shortly afterwards Mr. Devaney started a profitable business accepting industrial waste for disposal in the quarry, while continuing to take out sand and gravel. He stated in evidence that the defendant’s lorries collected some of this material from the quarry for use on the roads. Presumably the county manager as chief executive officer of both the defendant and Sligo Corporation had some responsibility for the closure of the Finisklin dump for industrial waste and was aware of the use Mr. Devaney was making of the quarry.
In or about the same time Mr. Devaney applied for a haulage licence to carry waste but this was refused and he then entered into negotiations with the defendant through the county manager for the sale of the quarry for the purposes of a general dump. As Mr. Devaney was asking for £200,000 for the quarry, the negotiations fell through at this time. The negotiations were resumed in February, 1982, and resulted in a lease of the quarry by Mr. Devaney to the defendant dated the 20th January, 1983, whereby the quarry was demised to the defendant for the term of one year from the 1st January, 1983, at the rent of £4,000. The defendant was also given an option to purchase the quarry for £100,000, the option to be exercised not later than the 31st December, 1983. The consideration for this option was a further sum of £5,000. On the 1st February, 1983, the county manager, on behalf of the defendant, entered into an agreement with Mr. Devaney whereby Mr. Devaney was engaged by the defendant as a contractor to manage the refuse dump in the quarry for the period of one year from the 1st February, 1983, in consideration of a further sum of £5,000 to be paid by quarterly instalments. Paragraph 9 of this agreement contained the unusual clause that the contractor should, if so required by the defendant, assist the defendant in resisting and opposing any objections or protests from any parties to the use of the refuse dump as such whether arising through legal proceedings or otherwise.
Notwithstanding the lease to the defendant and the management agreement, Mr. Devaney continued, for reward, to accept industrial waste and continued operating the quarry. The evidence of both the solicitor for the defendant and Mr. Devaney is that there was some sort of verbal agreement allowing Mr. Devaney to draw material from the quarry notwithstanding the lease to the defendant. It also seems to have been agreed verbally that Mr. Devaney was to be allowed to continue to receive and charge for the deposit of industrial waste. Neither of these agreements was witnessed by any written document.
Although the monuments are national monuments under the guardianship of the Commissioners of Public Works, the Commissioners were not consulted before the lease and agreement were executed. The county manager explains this omission by saying that there are no monuments in the quarry. This is, of course, correct. But the National Monuments Advisory Committee, set up by the defendant under the provisions of s. 22 of the National Monuments Act, 1930, was not consulted either. Nor were Bord Fáilte, An Taisce, the Royal Society of Antiquaries of Ireland or the Donegal-Sligo-Leitrim Regional Tourism Organisation consulted. All of these bodies wrote to the defendant criticising the proposed dump as soon as news of the proposal was made public through the local paper. In reply to the Tourism Organisation the secretary to the defendant protested against the criticism of the proposal and stated that no useful purpose would be served by explaining the defendant’s proposals.
It appears from the evidence of the county manager and from the form of the agreement of the 1st February, 1983, that it was then intended to operate the dump
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McWilliam J. 105
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at an early date and a letter from Mr. Devaney indicates that dumping had commenced at that time but had been discontinued, probably from the 28th February, 1983, in pursuance of a resolution to that effect passed at a meeting of the defendant. Possibly this resolution was passed as a result of the protests by various organisations.
Essentially, the plaintiffs’ claim is made on four grounds:
(1) That the defendant’s proposals will constitute a nuisance or nuisances, either public or private or both.
(2) That the operation of the dump would be a contravention of the County Sligo development plan of 1979.
(3) That the operation of the dump would necessitate a contravention of s. 14 of the National Monuments Act, 1930.
(4) That the operation of the dump would be a contravention of the European Communities (Waste) Regulations, 1979.
The anticipated nuisances include, principally, the offensive nature of a visible refuse dump in an area of great importance to archaeologists and to tourists and to all members of the public who visit the locality in large numbers both on account of the archaeological remains and the scenic attractions. In addition it is urged, and a considerable amount of evidence was adduced to support the contention, that the increased traffic of lorries to and from the quarry on the narrow roads in the area will obstruct the ordinary traffic of the residents and tourists and others. No reference was made by either side to the lorry traffic which must have used these same roads for the carriage of the industrial waste to and the transport of sand and gravel from the quarry. It is further urged, and the evidence with regard to the dumps at Finisklin and Ballymote gives considerable grounds for apprehension, that there will be an infestation of vermin, mainly rats, and of seagulls; the rats being particularly objectionable in the mselves and the gulls being objectionable in that they tend to spread refuse round the adjoining land. It is also anticipated that there will be offensive smoke and smells, that there will be litter spread around this world-famous cemetery and the surrounding countryside by being blown from the quarry or falling off vehicles carrying refuse to the dump, by the activities of scavengers, and by people who adopt a procedure known apparently as “fly-tipping” who bring refuse to a dump and, if they find it closed, deposit the rubbish in any available spot nearby. Finally, it was very strenuously argued on behalf of the plaintiffs and equally strenuously refuted on behalf of the defendant, with expert evidence being tendered on each side, that there will be noxious liquids leaking from the dump into the subterranean water which provides the source for the wells of the original plaintiffs and others. At some stage in 1983, presumably after the objections to the Carrowmore dump had been made and possibly after the institution of these proceedings, the defendant produced what is entitled a preliminary draft waste management plan, 1983. I am not satisfied as to the accuracy of this plan because, in the section headed “Existing Waste Collection Service”, the dump at Ballymote is described as being well maintained. The photographs of the face of the tiphead at Ballymote which have been put in evidence and the evidence with regard to the numbers of rats at this site completely
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McWilliam J. 106
H.C.
contradict this statement, although the portions of the site which have been filled already and covered over are obviously satisfactory.
Shortly before the hearing of the action, the defendant prepared a draft management plan for the Carrowmore landfill site. I am satisfied that this plan would not have been prepared had it not been for the institution of the proceedings, but this plan does provide for very comprehensive safeguards for the management of the dump and the county manager stated in evidence that these safeguards would be put into operation if the quarry were to be used for a dump. If these safeguards were to be properly operated, I am of opinion that no actionable nuisance would arise. On the other hand, to operate them will undoubtedly be very costly and it may be found impracticable to embark on such an enterprise with the funds presently available to the defendant. In particular, it has been estimated that the cost of accurately ascertaining the effect of the proposed dump on the underground water will be in the region of £15,000. As I understand the evidence of the officials of the defendant it is not now proposed to use the quarry as a dump until such tests have been carried out, whatever may have been the original intention. As the defendant has had the right to occupation since February, 1983, it is difficult to see why these tests, if originally intended to be made, have not been carried out during the present year. The county manager explains this by saying that the injunction of the 25th July prevented the tests being carried out. This is an unsatisfactory explanation in view of the period which had elapsed between the date of the lease and the date of the injunction and the failure of the defendant to consider its responsibility for the dumping by Mr. Devaney after the granting of the injunction. The conclusion is almost inevitable that there would not have been any complete and expensive hydrological tests had these proceedings not been commenced.
I have been referred to a number of provisions in the development plan of 1979. Generally speaking, these provisions refer to the importance of preserving the archaeological and historical remains, the amenities of places of natural beauty or interest, and, in particular, refer to the cemetery as being unique both in Ireland and in Europe. There has been a conflict of expert evidence as to the effect of the dump, if properly managed, on the amenities of the area, but I have formed the opinion that the proposed dump does not conflict with the provisions of the development plan it the proposals in the draft management plan are closely observed. The quarry in its present condition is certainly not an amenity and I accept the evidence that the amenities of the area will be improved when the quarry is filled and covered over. But this will take a long time and it is depressing to think that the operation of the dump in this area will continue for about thirty years.
My attention has been directed to the sub-heading “Proposed Action” at p. 184 of the development plan where it is stated, at para. 2, that action will be investigated as to declaring the land in and around the cemetery an unauthorised gravel pit and seeing that extraction ceases there as soon as possible. How this can be reconciled with the continued purchase and haulage by the defendant of material from the quarry is difficult to understand.
I am of opinion that the proposed dump does not necessitate any contravention of s. 14 of the National Monuments Act, 1930. There is no evidence that there is any threat to the fabric of any of the surviving monuments and I am of opinion that filling the quarry does not constitute excavating, digging, ploughing or otherwise disturbing the ground in proximity to the monuments, within the meaning of the Act.
Article 3 (1) (b) of the European Communities (Waste) Regulations, 1979, provides that a holder of waste shall not dispose of it in a manner which would endanger health or harm the environment or, in particular, which would (i) create risk to water, air, soil, plants or animals, (ii) cause a nuisance through noise or odours, or (iii) adversely affect the countryside or places of special interest.
I have dealt with most of these matters already. On the evidence given before me, I do not consider that there will be any appreciable nuisance from noise and, if the provisions of the draft management plan are enforced, I do not anticipate any nuisance from odours. As already stated, an unsatisfactory aspect of the project is the length of time it will take to complete but, as against this, it has not been suggested that there is, at present, any restriction on the owner of the quarry from continuing to work it or enlarge its size.
It is only proper to refer to certain aspects of the attitude shown by some of the plaintiffs to the preservation of the amenities of this region although it is not relevant to my decision. The plaintiffs complain of disturbance of the ground in proximity to the national monuments yet one of them erected a building most unsuitable to the area and very close to a well-preserved monument. Another of the plaintiffs, or his family, appear to have worked a sandpit close to some of the monuments in the cemetery.
I was referred to a number of cases. In the circumstances of the present case the most relevant seems to me to be that of Attorney General (Boswell) v. Rathmines & Pembroke Joint Hospital Board [1904] 1 I.R. 161 in which FitzGibbon L.J. said at p. 172 that “the decision depends on the facts proved in the particular case, with due regard to the opinion of experts so far as they are founded upon facts.” Under the circumstances of this case which I have set out, I am of opinion I should refuse to grant the relief sought but I will direct that the full report of the hydrologist employed by the defendant shall be furnished by him to the solicitor for the plaintiffs at the same time as it is furnished to the defendant and I will give liberty to apply in this action.
In accordance with his directions the matter came on for further hearing on the 6th February, 1985, before McWilliam J. arising out of the hydrological report which the defendant undertook to commission and upon hearing witnesses and considering the county engineer’s Carrowmore land fill site management plan together with the annexes thereto, viz. Institute of Industrial Research and Standards report, report from An Foras Forbartha and the hydrological report of the 25th March, 1984, the trial judge made the following further ruling:
On 21st December, 1983, I gave judgment in this matter refusing the relief sought by the plaintiffs subject to reports of the hydrologists for both parties being submitted as to the likelihood of contamination of the local water supplies by the operation of this waste disposal dump. In the event I have heard oral evidence from the experts in this field on both sides.
The first observation I would make is that there is no perfect site for waste disposal, in so far as I have understood the conflicting evidence. The most that can be done is to make the procedure as safe as possible having regard to the situation and then provide an efficient monitoring service to keep a check on what is happening. The management plan now before me appears to me to guard against the problem of ground water pollution. It is urged on behalf of the plaintiffs that there is either a possibility or probability of the management plan not being followed out and, if not, there is bound to be pollution. This contention is based partly on the established mismanagement of the Council’s two previous dumps. I cannot, however, act on an assumption such as this and I think I am bound to assume that the management plan set out in such detail will be observed. I will direct that there shall be no dumping until the monitoring procedure shall have been set out and the controls in the plan shall have been established. I will also direct that all reports be furnished to the management committee to be set up. The relief sought in the claim herein will be refused but the parties will be given liberty to apply.
Walsh J.
17th February 1989
I agree with the judgment to be delivered by McCarthy J.
Hederman J.
I also agree.
McCarthy J.
“In County Sligo, one of the largest groups of megalithic remains in western Europe may be found. At Carrowmore, 5 km (3 miles) from Sligo, there are dolmens, stone circles and cairns with sepulchral monuments bearing carvings thought to date from the Bronze Age. About 3 km (2 miles) from Carrowmore, Knocknarea rises to a height of 328 m (1,078 ft). On its summit there is a gigantic cairn called Misgaun Maedhbh (Maeve’s Mound), traditionally the grave of Queen Maeve of Connacht who flourished in the first century A.D.” (Bord Fáilte Holiday Guide, Sligo, p. 5).
By deed of the 12th December, 1885, the Earl of Erne, being the owner within the meaning of the Ancient Monuments Protection Act, 1882, of the sepulchral remains at Carrowmore and the cairn called Misgaun Maedhbh or Knocknarea, constituted the Commissioners of Public Works in Ireland the guardians of such monument. In 1979, in continued compliance with its obligation under the Local Government (Planning and Development) Act, 1963, Sligo County Council reviewed its development plan and made a new plan indicating the development objectives of the county including objectives “(2) for the preservation, improvement and extension of amenities.” Section 19, sub-s. 2 of that Act includes amongst the purposes mentioned in the Third Schedule under the heading of “Community Planning” the determining of the provision of and siting of sanitary services, which includes refuse disposal. Part IV of the Third Schedule under the heading of “Amenities” refers, amongst other things, to “6. Preservation of caves, sites, features and other objects of archaeological, geological or historical interest” and “11. Prohibiting, regulating or controlling the deposit or disposal of waste materials and refuse, the disposal of sewage and the pollution of rivers, lakes, ponds, gullies and the seashore.” The context of Part IV seems to recognise that amenities are of a kind with views, prospects and features of natural beauty or interest; refuse disposal may be prohibited, regulated or controlled as a purpose mentioned in Part IV of the Third Schedule, as part of preserving, improving and extending amenities.
The plan incorporated verbatim the contents of Parts III and IV of the Third Schedule including para. 6 as cited and the plan stated the policy of the Council to be “to assist in the provision of the items listed under the headings of amenity, archaeological and historical, in Part IV of the Third Schedule having regard to the specialist advice available in relation to areas of scientific and amenity interest, buildings of archaeological, geological and historical places or features of particular interest.” Further “it is an objective of the Council that in amenity areas uses and structures will not be permitted which conflict with the preservation of the amenity. In all other areas new uses of structures will not be permitted which would seriously conflict with the established uses of the area or its amenities.” The plan listed at Table 32 items for preservation or protection including “Carrowmore Passage Grave Cemetery”. Under the heading of special recommendations the plan incorporated verbatim a report obtained from An Foras Forbartha which stated:
“(b) Carrowmore Passage Grave Cemetery.
The Carrowmore Cemetery forms one of the largest concentrations of megalithic tombs in Europe. There were at least 65 tombs in the area and it seems probable that there were originally many more. The cemetery covers an area roughly one mile N – S and half a mile E – W. The layout of the monuments as a whole forms a roughly oval shape with the largest cairn Listoghil – situated inside the oval at the NW – as a “king-pin” site. Listoghil is the most prominently situate monument of the series but many of the other tombs are situated in low eminences.”
The lengthy extract from the Foras Forbartha report concludes with the observation:
“So the number of tombs at Carrowmore has been decreasing steadily since records of the area began and unless a firm stand is taken now to halt this destruction it will clearly continue. But if we act now there is still time to save what is still one of the most important and impressive complexes of pre-historic monuments in Ireland.”
Page 230 of the plan identified, in the words quoted by Bord Fáilte, Knocknarea and the Carrowmore Cemetery as part of the “cultural heritage” of County Sligo. But it was not in 1979 that this recognition had begun. A number of applications for planning permission made under the Act of 1963 had been refused on grounds related to the plan. This policy was well expressed in a letter of the 18th October, 1976, written by the chief assistant county engineer, James Harney, in a comment on an appeal brought by Michael O’Hara:
“In conclusion in the examination of any application for permission to carry out development in the Carrowmore area the Council must have regard to its own County Development Plan and also to the Permission Regulations made under the Local Government (Planning and Development) Act, 1963, where there is an obligation upon the local authority to give notice of an application to certain bodies such as the National Monuments Advisory Council, Bord Fáilte, An Taisce, etc., where the development proposed is such that these bodies would be interested. As the local authority does not have any archaeologists on its staff it must, of necessity, be guided by the expert advice given by these prescribed bodies in matters such as these and the National Monuments Advisory Council have sent many of its senior members to carry out comprehensive surveys in the Carrowmore area and they have formulated the policy for the protection of this area. I would also add Sligo Field Club are of considerable assistance and it is a policy of this Council, where possible, toconsult with these members who give us the necessary background information to any of the monuments in this particular area.”
The plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism, and, if thought proper, objection. When adopted it forms an environmental contract between the planning authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself. He would be further assured by the requirement of consultation with important and highly qualified independent bodies such as the National Monuments Advisory Council, An Taisce etc.; the motto of the City of Dublin (Obedientia civium urbis felicitas) joined with the statutory duty of the Council under the Act would have led to the even-handed administration of the planning code. But,
“The wind has bundled up the clouds
High over Knocknarea
And thrown the thunder on the stones
For all that Maeve can say.”
(W.B. Yeats, Red Hanrahan’s Song about Ireland).
Every sanitary authority, such as the Council, in part at least of its county, contracts for the removal of house refuse and trade refuse within the meaning of the Public Health Acts and has to provide a suitable place for dumping of refuse. Sligo County Council has such dumping facilities at Ballymote and, courtesy of Sligo Corporation, at Finisklin, the latter, at the time of the hearing of this action, being in poor condition. The Council examined some twelve or fifteen sites in order to expand its refuse disposal facilities. At Carrowmore, over many years one Bernard Devaney had been quarrying sand and gravel from an area of land that was clearly part of the Carrowmore Passage Grave Cemetery, at least, at one time. It lies to the east of the made roadway and had contained at least two numbered tombs. (The original numbering by Dr. George Petrie had been amended and improved by Colonel Woodmartin, whose numbering is still in active scientific use.) A significant area of this rolling grassland had been devastated by this quarrying leaving, in effect, an enormous hole in the ground. It was beside the roadway; it was within 4/5 miles from Sligo town; it was calculated that infilling with refuse would last for upwards of twenty years with gradual covering with overburden and the eventual re-creation of the rolling grassland that had once been there. This to Sligo County Council, in the person of its executive, it being an executive power, seemed an admirable solution. It would combine the provision of a very convenient refuse dump with an environmental advantage of restoring the site itself. The Council was not dealing with the planning application; there was no legal requirement under the Regulations of 1977 that it should consult the various scientific bodies mentioned; it consulted nobody, not even those with whom it had the environmental contract, its own community. It was not required to give formal notice to anyone; it merely dealt with Mr. Devaney. The Council thought it could go ahead without notice to the scientific bodies, without notice to the community, without notice to those whose planning applications had been refused and without encountering any real resistance. The Council was wrong; it reckoned without that combination of private advantage and public spiritedness that sometimes goes to law to bring bureaucracy to heel. It reckoned without the present plaintiffs.
Frank McGarry, Paddy O’Hara, Patricia Mulligan, Neil Cremin and John Hamilton all reside and own homes and lands near to the disused gravel pit. On the 11th July, 1983, they commenced an action against the County Council seeking an injunction against the use of the pit as a refuse dump or pithead and a variety of other forms of relief, including damages for nuisance. On the 25th July, 1983, they obtained an interlocutory injunction restraining the Council from entering at the pit for the purpose of developing, opening, preparing or using the same as a refuse dump or pithead. The statement of claim had been delivered on the 14th July and the defence, with admirable expedition, on the 22nd August so that the action came for trial before McWilliam J. on the 22nd November and succeeding days, judgment being delivered on the 21st December, 1983. At the hearing of the notice of motion for an interlocutory injunction, counsel for the then plaintiffs undertook to the court to seek the authority of the Attorney General to initiate relator proceedings in respect of certain public rights in relation to which the Council had pleaded in its defence that the plaintiffs in their own right had no locus standi. The plaintiffs “related” the allegations to the Attorney General and he, on 3rd November, 1983, authorised relator proceedings in which form the action proceeded with the Attorney General as plaintiff. The issue did not arise for discussion in the instant appeal, and is one that would require elaborate examination, but I am not to be taken as supporting or otherwise the apparent view of the High Court judge that it was necessary to bring these proceedings as a relator action. The final structure of the action is one by the Attorney General at the relation of the five named plaintiffs and by the five named plaintiffs in their own right.
After a lengthy trial the Council undertook:
“(a) Not to use the disused sand-pit at Carrowmore in the County of Sligo adjacent to the pre-historic megalithic tombs of Carrowmore the property or formerly the property of Bernard Devaney as a refuse dump or pit-head for the disposal of refuse collected by the defendant until further order; and
(b) In the event of the defendant purchasing the said site that it will not use it as a refuse dump or pit-head for any refuse whatsoever until further order; and
(c) That it will commission a hydrological report on the said site and that it will furnish a copy of that report to the solicitors for the plaintiffs at the same time as the report is furnished to the defendant.”
On this undertaking the court refused to grant the relief sought by the plaintiffs and discharged the injunction, but ordered that the defendant Council pay one half of their costs to the plaintiffs. The matter came on for further hearing and on 11th February, 1985, McWilliam J. directed:
1. That a regular monitoring procedure be put into operation in accordance with the consulting hydrologist’s recommendations.
2. That no dumping be carried out until the monitoring procedure shall have been put into operation and the controls in the management plan shall have been established.
3. That all reports be furnished to the management committee to be set up, with an amendment of the order as to costs.
In the result the plaintiffs failed in their claim for an injunction but appeared to have established to the satisfaction of the learned High Court judge that the management plan, the key to be able to operate the refuse dump without its being a nuisance at law, “would not have been prepared had it not been for the institution of the proceedings”; it was, no doubt, because of this conclusion that the order for costs was made in the form stated. Whilst the notice of appeal challenged the finding in the High Court in respect of nuisance, this has not been pursued on the hearing of this appeal, which has been limited to two grounds to the effect that the learned trial judge erred in law and in fact:
(a) in finding that the proposed refuse dump did not constitute a material contravention of the Sligo development plan;
(b) in holding that the said proposed refuse dump was not in contravention of the provisions of the National Monuments Act, 1930, as amended.
The development plan
In the introduction to this judgment I have quoted verbatim certain parts of the plan. It would seem by definition that if a refuse dump constituted an actionable nuisance it must be a contravention of a development plan; the actionable nuisance has been allayed, it is said, by the management plan, although it, itself, involves some 80 vehicle movements per day, the building of a keeper’s house, of offices, canteen and toilets, of a weighbridge, the use of wheel washers, heavy machinery, a skip to deal with “fly tipping”, the construction of fencing, screening, and appropriate signs. It is somewhat ironic that, on the hearing of this appeal, the plaintiffs should contend with some force that the management plan itself, as so detailed, involves a material contravention of the development plan. I would not rest my judgment upon this ground. In my view, the development plan expresses with most commendable clarity the admirable objectives of Sligo County Council both in its executive and its elected members. It identifies the unique importance of the Carrowmore Passage Grave Cemetery not merely as part of the national heritage but also on a European scale. But such professions of intent and concern are mere window dressing if, without reference to the many skilled and interested bodies and groups, with the understandable wish to provide adequate refuse disposal for the demands of the county, the Council propose to use the site or part of the site or a part adjoining site as a refuse dump. Much of the debate concerned the exact location of what is described as the Carrowmore Passage Grave Cemetery. The grounding affidavit for the interlocutory application identified the site of the disused pit as “adjacent to an historic site of a passage tomb known as Carrowmore Passage Grave Cemetery.” The pit had clearly contained at least two of the tombs and there are a number of others already identified as being on the eastern side of the roadway which it was proposed to use as an access point to the pit-head or refuse dump, the entire of it lying to the east of the roadway and all the presently identified tombs lying to the west. I would not found my judgment, however, upon so restricted an approach. If a particular area be identified as an area for conservation for any amenity reason, one does not then legitimately permit development to the very boundary of the area; either the area must itself be prescribed as extending to a sufficient circumference as will allow for a fallow area in between, or must envisage that such fallow area shall adequately extend outside the immediate area of the amenity.
In the High Court McWilliam J. dealt briefly with this issue (at p. 106supra):
“There has been a conflict of expert evidence as to the effect of the dump, if properly managed, on the amenities of the area, but I have formed the opinion that the proposed dump does not conflict with the provisions of the development plan if the proposals in the draft management plan are closely observed. The quarry in its present condition is certainly not an amenity and I accept the evidence that the amenities of the area will be improved when the quarry is filled and covered over. But this will take a long time and it is depressing to think that the operation of the dump in this area will continue for about thirty years.
My attention has been directed to the sub-heading “Proposed Action” at p. 184 of the development plan where it is stated, at para. 2, that action will be investigated as to declaring the land in and around the cemetery an unauthorised gravel pit and seeing that extraction ceases there as soon as possible. How this can be reconciled with the continued purchase and haulage by the defendant of material from the quarry is difficult to understand.”
The Council has argued that neither the High Court nor this Court should, as it is said, act as a referee on the suitability of any particular project, relying upon the decision of O’Keeffe P. in An Taisce v. Dublin Corporation (Unreported, High Court, 31st January, 1973) which is referred to in some detail in Keane, The Law of Local Government in Ireland (1982) at page 214. Dublin Corporation had indicated as an objective in its development plan the preservation of the Bull Island, off Dollymount Strand, as a bird sanctuary and area of interest to naturalists generally. It proceeded to use part of the island as a refuse tip, but maintained that it was not as a result interfering unduly with the ecology of the island and that the refuse tip, when compacted, covered with topsoil and seeded, would provide suitable walks and hides for persons observing the birdlife. An Taisce maintained that the ecology of the island would in fact be irreparably damaged by the continuation of tipping and that the planning authority was thereby contravening materially its own development plan. A considerable body of expert evidence was adduced on the ecological aspects of the controversy in the course of the case; but O’Keeffe P. declined to resolve the conflict of views as to what was the most appropriate manner of preserving the island as a bird sanctuary and wildlife habitat. He held that the Oireachtas had imposed on the planning authority the duty of preserving and improving the amenities of its area and that the High Court could not usurp the jurisdiction thus conferred on the authority by purporting to resolve a conflict of this nature. It appears that an appeal was brought from this decision to the Supreme Court but was subsequently withdrawn. Essentially that case was different from the present. In that case there was a dispute as to the effect on the ecology of the island in particular as a bird sanctuary. Here the dispute concerns the area of Carrowmore Passage Grave Cemetery and whether or not the establishing of a refuse dump or refuse tip is a material contravention of the development plan. It does not require the resolution one way or the other of any particular conflict of evidence – there is no conflict of evidence in this regard; the conflict is as to the inferences to be drawn from the evidence with particular reference to the plan. In my judgment, the use of the quarry or pit as a refuse dump or pithead is a clear and material contravention of the development plan; it seems to me to be of little moment that a road divides the quarry from the main cemetery area. It is not the manner of use of the dump; it is not that the dump will not be an actionable nuisance that is relevant; it is the very existence of the dump in the area in question. Every part of the development plan to which I have referred clearly identified the local, national and international importance of this area of County Sligo; it cannot save by doing violence to the language of the plan – by a material contravention of it – permit the maintenance of a refuse dump in that area.
National Monuments Act, 1930
Section 14, sub-s. 1 provides:
“It shall not be lawful for any person (whether he is or is not the owner of the monument or is or is not seised or possessed of an estate or interest therein) to do any of the following things in relation to a national monument of which the Commissioners or a local authority are the owners or the guardians or in respect of which a preservation order is in force, that is to say:
(a) to demolish or remove wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or (b) to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or
(c) to sell for exportation or to export any such national monument or any part thereof.”
The Commissioners of Public Works are the guardians of the Carrowmore Passage Grave Cemetery and their consent has not been asked in respect of any of the works described. It is said that the use of the quarry or pit as a refuse dump will not disturb the ground within, around, or in proximity to any such national monument as described in the deed of 1885. The ground has already been much disturbed and, no doubt, must be disturbed further in order to enable the structures following on the plan to be built and in the working of the refuse dump. I would think that to the ordinary citizen the operation of a refuse dump with the use of an access road which is the only division between the present viewable passage grave and the dump itself is disturbing the ground in proximity to the passage grave which itself extends over a very large area. Quite apart from this consideration, it does not seem to me to lie in the mouth of those who would seek further to disturb the ground to say that whatever passage grave existed in the area now the site of the quarry has long since been destroyed and that, therefore, it is”open season” on what is left.
In my judgment, the plaintiffs have made out their appeal under both legal headings and should be granted relief accordingly. I would not like to end this judgment without paying tribute to the courage of those who, at considerable monetary risk, challenged the conduct of the local authority in County Sligo thereby going some way to answer the stated observation of an important archaeologist in the western world: “Do the Irish have no pride?” (Dr. Goran Burenhult – evidence on the 22nd November, 1983, at question 267.)
Full costs were awarded to the plaintiffs in both courts and when drawing up the order of the Supreme Court, the plaintiffs suggested the following final provision:
“(3) that the defendant do pay to the plaintiffs interest on the said costs incurred in the High Court at the statutory rate of 11% per annum from the 11th February, 1985, to the 22nd January, 1989, and thereafter at the rate of 8% per annum until the date of payment.”
The claim for interest was contested by the defendant and the matter re-entered in the Supreme Court for ruling. The unanimous decision of the Court was delivered by Walsh J.
The point in this case which now falls for decision by this Court is whether the costs awarded to the plaintiffs should carry interest. It had been submitted on behalf of the plaintiffs that because this Court has comparatively recently decided that costs carry interest (see Cooke v. Walsh and the Attorney General (Unreported, Supreme Court, 29th July, 1988)) therefore they should automatically get an order for interest on their costs. In my view that is to oversimplify the position.
The costs involved in this case are party and party costs. The basis of party and party costs is one of indemnity. It is also important to bear in mind that the costs as between party and party are the client’s costs. What can be recovered in party and party taxation is the money paid out or, perhaps in tune with more modern practice, the monies which the successful party had already undertaken with his solicitor and counsel and other persons to pay, such as witnesses etc., even though not yet paid. Nothing can be recovered in party and party taxation unless three conditions are fulfilled namely, (a) that the court has made an order for costs in favour of the party, (b) that the matters claimed had been properly incurred, and (c) that the party in question is under legal liability to pay them.
Where the money has been actually paid out by the client when he is under a liability to pay it and that money qualifies as taxed costs he would be entitled to interest on it if the court awards interest. However if the money has not been paid out the liability is no greater than to pay sums agreed between the client and his legal advisers and the legal liability is no greater than the sum he has agreed to pay. Primarily that is a matter entirely between the client and his legal advisers. It does not of course follow that everything he has agreed to pay or has in fact paid would be recoverable in party and party taxation because the Taxing Master may properly disallow certain payments as not having been properly incurred or else incurred to a greater amount than would be allowable under taxation.
If in a case where the client has not yet paid anything to his legal advisers and has no agreement with them to pay interest either on what he has agreed to pay them or on the sums taxed he has no right to claim indemnity against the other side in respect of a sum for which he is not legally liable. Indemnity can only arise where there has been loss or expense incurred and where that is not present there is no right to indemnity in respect of any such sum.
In the present case it is submitted that there is no liability upon the successful plaintiff to pay out any sums other than the sums he has agreed to pay to his legal advisers and that such agreements do not contain any liability to pay interest. The matter is no different in principle from a case in which a client is under no legal liability whatever to pay the costs and expenses incurred to maintain his side of the case. In such a case he is not entitled to recover any sum by way of indemnity on party and party taxation. A more common example is, perhaps, the case where a client’s solicitor is a salaried solicitor whose work in the particular case is part of his general work which he is to perform for the agreed salary. For example in such a case the client would not be entitled on a party and party taxation to seek to recover profit costs for that solicitor. If in cases where fees have not actually been paid although legally due, the General Council of the Bar of Ireland or the Incorporated Law Society of Ireland permitted their members to agree to stipulate for interest in their professional engagements then the situation would be different. That however is not the present case.
In my view the present claim cannot be sustained and there can be no order for interest on the costs in the present case.
Mark Wilkinson v Dublin County Council
1990 No. 201 JR
High Court
7 September 1990
[1991] I.L.R.M. 605
(Costello J)
Because of the failure of the Dublin County Council to implement its 1986 ‘Programme for the Settlement of Travelling People’ and to supply serviced sites for members of the travelling community, a large number of travellers continue to live in the council’s administrative area in quite appalling conditions, and as trespassers on any vacant plot of land they can find for their caravans. The position has been especially severe in areas of Tallaght and Blanchardstown and the west of County Dublin. For the past six or seven years lands owned by a firm called Green Properties plc and its subsidiaries and intended for development as a town centre for Blanchardstown have been occupied by travelling families, as many as a hundred families occupying the site at certain times. Work on the site was scheduled to begin in June of this year. Thereafter proceedings were successfully taken by Green Properties to eject the trespassing families from the lands. This development on behalf of the owners of the land was one which should have been anticipated for some considerable time. As a result, there are now added to the existing numbers living in unserviced sites approximately 65 families in 84 caravans who are obliged to wander the roads of County Dublin with no serviced sites available for them and the prospect of bitter objection from local residents if they park their caravans near existing housing developments.
The council’s programme, adopted in 1986, was to provide sites for an estimated 124 families on 30 sites throughout the county but little or no progress in implementing this programme has taken place. However, the council owned land at a junction known as the Tyrrellstown Cross in Mulhuddart. Since 1989 four families of travellers have illegally occupied this site and have been allowed to remain there by the council. The council has now decided to develop this site to accommodate 84 caravans, including those of the 65 families from Blanchardstown. A plan was prepared, submitted to the Department of the Environment and approved by it and authorisation to spend £262,000 obtained. The area is to be developed with hard core surfaces, water points, communal toilet facilities and refuse skips. The different groups of travellers are to be separated by earthen banks to give a self-contained area to each group. It is a *607 remarkable feature of this case that the council does not appear to know the number of persons who will occupy the site as apparently it has not taken any census of the numbers involved or made inquiries from social workers helping the travelling community. Instead, it has made an estimate based on the average number of members in a travelling family established in a report of the Economic and Social Research Institute and it has multiplied by six the number of families at Blanchardstown, 65, and as a result estimates that the number on the site at Tyrrellstown Cross will be less than 400 people. The applicant in these proceedings contests this figure; he says that the site will provide accommodation for anything between 600 and 1,000 persons.
The development of the site was authorised by the county manager by an order of 19 July 1990. Proceedings challenging the validity of this order were taken by a Mr Owen Reid and an application for interlocutory injunction made. An order was made by the High Court on 20 August 1990 restraining the council from developing the site until a further managerial order was made specifying exactly the work to be done. This new order was made on 22 August 1990. This is the order which is impugned in these proceedings. Pursuant to it the council recommenced development on the site. It was met by the determined opposition of a number of local residents who physically obstructed its entrance. By order of this Court on 27 August 1990 in proceedings instituted by the council certain named persons were injuncted from interfering with the development until 5 September last. An application to continue the injunction until the trial of the action and an application to commit certain named persons who it was said were in contempt of the order of 27 August has been brought but these have been adjourned until the issue of the validity of the manager’s order of 22 August last has been determined.
The effect of s. 39(1) of the Local Government (Planning and Development) Act 1963 is that the county council may not effect any development which contravenes materially its own development plan. The development plan was adopted in 1983 and later varied. The applicant’s case is that the manager’s order of 22 August materially contravenes the plan and is, therefore, ultra vires and void. This submission calls firstly for an examination of the plan in its unvaried form.
The plan contains a section on land use zoning, paragraph 3.4.1, whose purpose is to indicate the planning control objectives of the council for all lands in its administrative area. Nine zones are indicated in the plan. It has not been made clear whether Tyrrellstown Cross is in an ‘A’ zone or in an ‘A1’ zone but the distinctiom is not important for reasons I will explain in a moment. The zoning objective in an ‘A’ zone is to protect and improve residential amenity whilst the zoning objective in an ‘A1’ zone is to provide for new residential communities in accordance with approved action area plans (p. 113). There are set out tables which illustrate the acceptability or unacceptability of various uses *608 for each of the use zoning objectives. Certain uses are permitted; certain uses are open for consideration, that is are not acceptable in principle but in certain circumstances may be allowed; and certain uses are not permitted. In zones designated ‘A’, which are zones for the protection of residential amenity, one of the uses which are open for consideration is that of ‘caravan park, residential’. In zones designated ‘A1’, that is areas zoned to provide new residential communities, the use of ‘caravan park residential’ is expressly permitted. A definition of the term ‘caravan park, residential’ is to be found in the appendix (p. 301) which makes a distinction between ‘holiday caravan parks’ and ‘residential caravan parks’ as follows:
Caravan parks, holiday; the use for the accommodation of vehicle caravans or temporary shelters.
Residential: the use of land for the accommodation of caravans designed specifically for year-round human habitation.
This means that if the proposed development at Tyrrellstown Cross can be regarded as use as a ‘residential caravan park’ as defined, then the proposed development does not contravene the zoning requirements of the development plan. If the area is zoned ‘A’ then it is expressly permitted. If it is zoned ‘A1’ then its use as a residential park is a use which is open for consideration and is not prohibited.
It is true that I have no specific evidence as to the type of caravans which the travellers will reside in at the site but I think it is reasonable for me to assume, as O’Hanlon J assumed in O’Leary v Dublin County Council [1988] IR 150, that as the travellers have, in fact, been using their caravans at the Blanchardstown site all the year around, the caravans which will be accommodated on the site will be caravans designed specifically for year-round human habitation.
What falls next for consideration is whether the variation in the 1983 plan necessitated by the O’Leary case, affects the legal situation in any way. That case was concerned with a proposal by the county council to develop a site for the settlement of travelling people at Cherryfield Linear Park on the River Dodder but the proposed development was in an area zoned as one of ‘high amenity’ and residential caravan parks were expressly prohibited in such zones. O’Hanlon J held that this development contravened the 1983 plan and was, accordingly, ultra vires. The council then decided to vary the plan by specifically providing for the provision of halting sites in zoning categories considered suitable for such use. As a result, in areas zoned ‘A’ and in areas zoned ‘A1’ there have been added to the permitted uses ‘halting sites’, halting sites being defined as an area provided by the council for use as a residential caravan park ‘by members of the travelling community’. This means that in zone ‘A’ halting sites for travellers are permitted and residential caravan parks may be permitted, *609 whilst in zone ‘A1’ both forms of development are permitted.
It was strenuously argued on the applicant’s behalf that what is now proposed is not a halting site because of the large number who will use it. The elected members of the council at their meeting on 25 September 1985 adopted a resolution seeking the preparation of a programme for the settlement of the travelling people in the county which would incorporate a countywide system of halting sites with no more than five families per site and schemes for group housing of no more than five per site. In accordance with what was referred to as the ‘policy decision’ of the council, a programme was prepared which provides that travelling families would be catered for in 30 locations throughout the county on halting sites for not more than five families. This programme was adopted by the council in March 1986. On 30 June 1989 the council was considering a variation of the development plan so as to permit the development of halting sites as defined in various zoned areas and when so considering it had before it a report from the Dublin planning officer who specifically referred to this programme and to the fact that it should be noted that if the proposed variation was adopted that it would be adopted in the light of that programme, namely, the provision of 30 small halting sites throughout the county. There are, therefore, plausible arguments to support the view that the term ‘halting site’ is to be construed in the plan in the context of that programme and should mean sites of small dimensions but not necessarily ones limited strictly to five families.
It is not, however, necessary for me to reach any concluded opinion on this point because it seems to me that the term ‘halting sites’ and ‘caravan park residential’ are not mutually exclusive and that a development which could not properly be regarded as a halting site because of its size could properly be treated as a residential caravan park. This means that what is proposed at Tyrrellstown Cross does not infringe the zoning provisions of the 1983 plan. If it is not a halting site within the meaning of the plan as varied it can properly be regarded as a residential caravan park.
But that does not end the matter. A development may still amount to a material contravention of the plan if it is one which was not consistent with the proper planning and development of the area. Accordingly, the question can be posed, as it was in O’Leary’s case, suppose a private individual had applied for permission to erect ‘a residential caravan park’ on this site catering for 84 caravans and about 400 persons in accordance with the exiguous plans now proposed, would planning permission have been given? I have no hesitation in concluding that no reasonable planning authority could conclude that such a development would be consistent with the proper planning and development of the area. Let me suppose that a concerned voluntary organisation applied to erect a ‘halting site’ for members of the travelling community, as now proposed, would planning permission be granted? It is perfectly clear it is the policy of the council that halting sites should only be small in size but I conclude that, apart *610 from this consideration, no planning authority could regard a development of this magnitude, catering for so many persons in such barely adequate conditions, as being consistent with the, proper planning and development of the area.
The conclusions I have just reached might be different had I been satisfied that the proposed development was of a purely temporary nature because it might then be justified as a short-term emergency measure. The respondents have repeatedly referred to the proposed halting site as a temporary one, meaning thereby not that it is one that will be used as a temporary halting place from time to time by members of the travelling community but that the site will only be used as a halting site on a temporary basis and thereafter will revert to some other use. The applicant, with considerable justice in my view, looks with scepticism on this suggestion and it is urged, and I think correctly urged, that once the site is used as a halting site it will continue for an indefinite period so to be used. This view obtains support from the letter from the Department of the Environment of 26 June 1990 which points out that while the proposal is for a temporary halting site if it is considered that the site might be in use over the medium term, the provision of accommodation for a resident caretaker should be considered. There has been an extremely vague reference in the respondents’ affidavits to a time in the future when other serviced sites will ‘come on stream’ but no evidence has been given as to which of the sites referred to in its plan have already been serviced and occupied; no evidence has been given of what steps are now being taken to make available any of the sites referred to in its programme; and the evidence before this Court has avoided giving any specific information as to where and when action to implement the programme will be taken.
In the light of its record over the past four years, I can only conclude that it is probable that the council will use the site at Tyrrellstown Cross for an indefinite period in the future as a halting site for at least 400 members of the travelling community. In my opinion, such a development, whether it is called a halting site or a residential caravan park, is a material contravention of the plan because no reasonable planning authority could regard this development as being consistent with the proper planning and development of the area. For this reason the manager’s order was ultra vires his powers and should be quashed. This does not mean that the site cannot be developed as a halting site; it means that it cannot be developed as a halting site on the scale now proposed.
As the parties may wish to have my conclusions on the other issues in the case I should briefly state them.
In the policy section, (p. 48 et seq) of the plan, it is stated that its policy was to facilitate the growth of the agricultural and horticultural industries in the county, (para. 2.71) and it was urged that the proposed development infringed this policy. I cannot agree. The plan does not oblige the council to use any land it owns for agricultural or horticultural purposes and by using it as a residential *611 caravan site I do not think the manager is acting contrary to the policy objectives of the plan. Furthermore, it was submitted that this site was in what was referred to in paragraph 3.4.9 as a ‘transitional zonal area’, that is the boundary area between zones and that it was a policy consideration of the plan, as stated in this paragraph, that abrupt transitions in scale and use in the boundary areas of adjoining land use zones was to be avoided. I have no evidence to suggest that this is in fact a boundary area and I do not know how the abutting areas are zoned but assuming that the site is on the boundary between a residential zone and an agricultural zone I cannot see how the proposed development infringes the policy considerations in this paragraph. I must hold, therefore, that the claim that the managerial order is ultra vires because it contravenes the council’s development plan on these two additional grounds fails.
One of the grounds on which the application for judicial review was based was that the provision of halting sites was a reserved function and not one for the county manager to implement. S. 13 of the Housing Act 1988 empowers a housing authority to provide sites for travellers’ caravans but this is not expressed to be a reserved function and so the manager can exercise the statutory power thus conferred. I should add that it has not been argued that the elected members, in adopting the 1986 Programme, were carrying out a reserved function and that a manager’s order which was contrary to this programme would amount to an ultra vires act.
Finally, it was urged that because the manager’s order would bring a reduction in the value of the applicant’s land it was made in disregard of his constitutionally protected property rights and was, therefore, invalid. This argument was based on the contention that the manager should have consulted with the applicant before making the order and that his failure to consult vitiated it. I cannot agree. The land is owned by the council. It may use it as it thinks fit as long as it does not materially contravene its own plan or involve the commission of a tort such as the creation of a nuisance. But the council is not required to hear representations from adjoining occupiers before developing its own property and I think the constitutional challenge to the order fails. However, for the reasons already given I will make an order quashing the manager’s order of 22 August 1990.
Dublin County Council v Michael Marren
And Michael Marren v Dublin County Council
1983 No. 25 MCA and 1983 No. 229 Sp
High Court
3 July 1984
[1985] I.L.R.M. 593
(Barrington J)
The first of these cases in a motion under s. 27 of the Local Government (Planning and Development) Act 1976 in which the County Council seeks an order restraining Mr Marren, as respondent, from carrying out any unauthorised development on lands at Brazil, Swords, County Dublin. The second proceedings are an action in which Mr Marren, as plaintiff, seeks a declaration that he has, in the events which have happened, obtained planning permission by default for the development in question.
Background
The background to the case is as follows. Mr Marren resides at 32 Oakwood Avenue, Swords, County Dublin, and is joint owner, with his brothers, of certain lands at Brazil, Swords, County Dublin. On these lands stand a motte and baily known as ‘The Brazil Motte’. This motte is a national monument and is listed for preservation under the County Council’s Development Plan. Since the present dispute arose the Commissioners of Public Works have, by order dated 16 June 1983, made a preservation order in respect of the motte. On 4 July 1978 Mr Marren applied for planning permission to build a bungalow on these lands. The register reference number of this application is R.A. 1116. On 1 September 1978 the planning authority refused permission. Their reasons were as follows:
1. The site is located in an area for which the zoning objective, as expressed in the county development plan, is to provide for the further development of agriculture. This proposal would be in conflict with that objective and so would be contrary to the proper planning and development of the area.
2. The site is located immediately adjoining Brazil Motte, which is a monument listed under the National Monuments Acts 1930 and 1954, and to locate a dwelling in such close proximity to it would detract from its value as a national monument.
3. The proposed development is undesirable, as access to it is on a bad bend and visibility at the access part is poor and would give rise to a traffic hazard.
4. There is no public sewer available to serve the development and no proposal for one.
5. The proposed development would be premature by reason of the said existing deficiency in the provision of public pipe sewage facilities and the period within which such deficiency may reasonably be expressed to be made good.
6. The proposed development is unacceptable on public health grounds because it would not be possible to accommodate satisfactorily a house, septic tank and percolation area within the confines of the site, having regard to its restricted size and shape. Drainage by means of septic tank would also be likely to cause pollution of adjoining river.
The dispute known as the postal strike began on 18 February 1979 and continued until 26 June 1979. Meanwhile Mr Marren had had informal discussions with officers of the County Council with a view to meeting technical objections to his proposed development. On 26 March 1979 Mr Marren visited the County Council’s Planning Department and handed in an application for planning permission. The register number of this application is S.A. 460. The application was accompanied with a covering letter in which Mr Marren stated: *596
I am re-applying for permission for a house at Brazil, Swords. The proposed access has been agreed with the Roads Engineer. The septic tank arrangements have been agreed with the Health Inspector. The site is part of farm of 96 acres and I need to be near it.
Signed:
Michael Marren.
Two months passed and Mr Marren heard nothing from the County Council. I am satisfied, on the basis of the evidence of the County Council officials, that the postal strike presented them with serious difficulties. They could not communicate with applicants for planning permission in the normal way because of the strike. Initially they made arrangements whereby important letters would be delivered personally to applicants by officials of the Council. But this involved the County Council in a dispute with its own officials who took the view that they should not undermine the position of the Post Office workers by delivering letters which would otherwise be sent by post. The Council attempted to contact Mr Marren by telephone but failed to do so apparently because of confusion arising from a change of street names in the Swords area. At any rate, and despite these various difficulties, the County Council did succeed, on or about 17 June 1979, in delivering to Mr Marren a letter dated 25 May 1979. This letter was, apparently, written the day before the relevant two month period had expired but was not delivered to Mr Marren until long after it had expired. The letter was headed ‘Re Bungalow at Brazil, Swords, County Dublin’, and read as follows:
A Chara,
With reference to your planning application received here on 26 March 1979, in connection with the above, I wish to inform you that before your application can be considered under the Local Government (Planning and Development) Acts 1963 and 1976 the following additional information must be submitted in quadruplicate—
1. As the site is located within an area of high amenity applicant to indicate how the proposed development is compatible with this zoning.
2. As the plans submitted show the proposed bungalow site in close proximity to a national monument, the applicant to indicate whether the proposed bungalow could be relocated within the lands under his ownership so as not to interfere with the ‘Brazil Motte’.
3. Evidence that the proposed dwelling can be adequately drained by way of septic tank. N.B. Please mark your reply ‘Additional Information’ and quote the register reference number given above.
On 19 June 1979 Mr Marren wrote to the County Council referring to the relevant provisions of the Planning Act 1963, to the date of his application and to the fact that he had not received any notification within the statutory period and went on to say that he ‘must therefore assume permission to be granted’. He added that he was arranging to proceed immediately with the development. On 2 July 1979 the County Council wrote back to Mr Marren stating that ‘the contents of your letter have been noted’.
Mr Marren stated in evidence that he later received a letter or notice from the County Council acknowledging that he had in fact obtained planning permission by default. He says he put this letter in a safe for safe-keeping but that when he later went to look for it he could not find it. Other persons had *597 access to the safe. Mr Marren also stated that he showed this alleged acknowledgment to friends and relations and some of these gave evidence before me. Their evidence was not, however, conclusive. They had been shown some document but they were not absolutely certain what it was. The County Council officials were emphatic that there was no copy of any such acknowledgment on the file and no record of any such acknowledgment being issued. They also emphatically denied that any such acknowledgment had, to their knowledge, been in fact issued. Meanwhile Mr Marren had obtained building bye-law approval dated 25 May 1979.
I believe that Mr Marren and his witnesses are telling the truth to the best of their recollection when they say they saw a document from the County Council acknowledging that Mr Marren had planning permission for this development. In view, however, of the absence of any copy of any such document on the County Council’s files and the firm evidence of the County Council officials that they have no knowledge of any such document being prepared or issued, I think it probable that Mr Marren and his witnesses are mistaken. What they saw may merely have been the County Council’s letter of 2 July 1979 or the bye-law approval or some other such document. However, I do not think that the existence or non-existence of any such acknowledgment can be decisive for the purposes of this case. Either Mr Marren has obtained planning permission by default or he has not. This is not merely an inter partes matter between him and the County Council, and the existence or non-existence of any purported acknowledgment from the County Council cannot determine it. I am, however, satisfied that Mr Marren believed he had obtained planning permission by default and I do not think he can be criticised for this belief in the light of the correspondence proved to have passed between him and the County Council.
Mr Marren eventually commenced his development sometime in April 1983, having giving the Council previous notice of his intention to commence work. On 12 April 1983 Mr Joseph Gorman, a planning inspector employed by the County Council, visited the site and found that foundations for a bungalow had been poured and that work was in progress. A discussion took place between Mr Gorman and Mr Marren — Mr Marren maintaining that he had planning permission and Mr Gorman maintaining that he had not. On 14 April 1983 Mr Gorman again visited the site and found two block-layers were working on the erection of a bungalow.
Meanwhile on 13 April 1983 the County Council had written to Mr Marren informing him that no planning permission existed for the development of the site ‘in that a planning application to erect a house on the site has not been determined in that further information was sought and never submitted’. They called on Mr Marren to cease all work on the site immediately. I am satisfied that on receipt of this letter Mr Marren in fact telephoned the County Council and undertook to cease all work until the issue concerning planning permission had been clarified. I am satisfied also that all work did cease as soon as it was practicable for Mr Marren to implement this undertaking.
Meanwhile the County Council had put in motion a s. 27 application to the court and, unfortunately, Mr Marren’s telephone undertaking did not reach those who were handling the s. 27 application. When; however, the matter did *598 come before the court Mr Marren renewed his undertaking in court and no work has since taken place on the site:
Issues
The central issue in the case is whether Mr Marren did or did not on 26 May 1979 obtain planning permission by default for the erection of his proposed bungalow. But on the case as presented and argued in court the County Council raised three defences to Mr Marren’s claim:
The first was that the default provisions did not apply in this case because a planning permission, if granted, would have involved a material contravention of the development plan.
Secondly, while they admitted that Mr Marren on 26 March 1979 made an application for planning permission they denied that the said application was made in accordance with the provisions of s. 26 of the Local Government (Planning and Development) Act 1963 or in accordance with the requirements of the Local Government (Planning and Development) Regulations 1977.
Thirdly, the County Council took the point that Mr Marren could not have obtained planning permission by default because any attempt to carry out the proposed development would amount to an unlawful interference with a national monument and would constitute an offence under the National Monuments Acts. On reflection, however, counsel for the County Council abandoned this point. S. 26 (11) of the Local Government (Planning and Development) Act 1963 provides that a person shall not be entitled solely by reason of a permission or approval under that section to carry out any development. Even if, therefore, Mr Marren has obtained planning permission by default, he is not entitled to carry out any development which would amount to an interference with a national monument without first obtaining the appropriate consent from the Commissioners of Public Works. The mere fact that the development might involve an interference with a national monument is not therefore material to the question of whether Mr Marren has obtained planning permission by default or not.
Material Contravention of Plan
The fact that the monument is a monument listed for preservation in the County Council’s own development plan is, however, relevant. For the County Council to grant a permission in total disregard of the implications of that permission for a monument listed for preservation in its own development plan would, it appears to me, be a material contravention of that plan. The question therefore arises whether the County Council would have power to grant such a permission. S. 26 (3) of the 1963 Act provided that the planning authority might not grant permission for a development which would materially contravene the development plan without the consent of the Minister. If, therefore, the planning authority could not grant such a permission of its own initiative it seems logical to conclude that it could not, by *599 default, and without reference to the Minister, grant a permission which it had not power to grant without the Minister’s consent.
It remains to consider what is the position in view of the changes introduced by s. 39 of the Local Government (Planning and Development) Act 1976. S. 39 of the new Act provides for the deletion of s. 26 (3) of the old Act and for its replacement by the following subs.:
(a) In a case in which the development concerned would contravene materially the development plan or any special amenity area order, a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section, provided that the following requirements are complied with before the decision is made, namely,
(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission shall be published in at least one daily newspaper circulating in their area,
(ii) copies of the notice shall be given to the applicant and to any person who has submitted an objection in writing to the development to which the application relates,
(iii) any objection or representation as regards the making of a decision to grant permission and which is received by the planning authority not later than twenty-one days after the first publication of the notice shall be duly considered by the authority, and
(iv) a resolution shall be passed by the authority requiring that a decision to grant permission be made.
(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) of this subsection that the number of the members of the planning authority voting in favour of the resolution exceeds one-third of the total number of the members of the planning authority, and the requirement of this paragraph is in addition to and not in substitution for any other requirement applying in relation to such a resolution.
(c) Where notice is given pursuant to s. 4 of the City and County Management (Amendment) Act 1955, of intention to propose a resolution which, if passed, would require the manager to decide to grant a permission under this section, then if the manager is of opinion that the development concerned would contravene materially the development plan or any special amenity area order, he shall within seven days of the receipt by him of the notice make an order (a copy of which shall be furnished by him to each of the signatories to the notice) requiring that the provisions of subparagraphs (i), (ii) and (iii) of paragraph (a) of this subsection shall be complied with in the particular case and the order, when made, shall operate to cause the relevant notice given pursuant to the said section 4 to be of no further effect.
(d) If a resolution referred to in paragraph (a) (iv) of this subsection is duly passed, the manager shall decide to grant the relevant permission.
It appears to me that before the planning authority can assume power to grant a permission which materially contravenes its development plan it must first adopt and follow the elaborate procedure set out in the new s. 26 (3) introduced by the 1976 Act. It cannot, simply by ignoring the elaborate pre-conditions prescribed by the Oireachtas, give itself power to do that which it would not otherwise have power to do. There was no attempt in the present case to invoke the procedures set out in the new s. 26 (3). It therefore appears that, on the facts of the present case, the County Council never had authority to grant a permission and could not therefore grant a permission by default.
Alleged Non-Compliance With Regulation
Counsel for the County Council also submits that s. 26 (3) of the 1963 Act, *600 which deals with the granting of permission by default, only applies where an application is made to a planning authority ‘in accordance with the permission regulations’. He alleges that the application in the present case was not made in accordance with the permission regulation because Mr Marren did not comply with those regulations in all material particulars.
The Supreme Court has decided, in Monaghan Urban District Council v Alf-a-Bet Promotions Ltd [1980] ILRM 64, that the relevant provisions of the permission regulations are not merely directory but are mandatory.
Both parties to the present case relied upon a passage which appears in the judgment of Henchy J in that case. The relevant passage reads as follows:
In such circumstances what the legislature has, either immediately in the Act or mediately in the Regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially and therefore adequately, complied with (at p. 64).
The County Council submits that Mr Marren’s application failed to comply with the Local Government (Planning and Development) Regulations 1977 (SI No. 65 of 1977) in a number of particulars.
Let it be said at once that there is no evidence that any official of the Planning Office was in any way incommoded or misled by the alleged failure of Mr Marren’s application to meet all the requirements of the regulations. The particulars in respect of which counsel for the County Council submits that Mr Marren’s application did not meet the requirements of the planning regulations are as follows.
The application was not accompanied by ‘such plans (including a site or layout plan and drawings of floor plans, elevations and sections) and such other particulars as are necessary to identify the land and to describe the works or structure to which the application relates’ as required by Article 18:
Paragraph 1 . In particular the application was not accompanied by any floor plans, elevations or sections.
Paragraph 2 . Plans and drawings or elevations and sections were not drawn to scale and did not give the measurements contemplated by Article 20.
Paragraph 3 . The north point was not shown on accompanying maps and plans (other than drawings of elevations and sections).
Paragraph 4 . The plans and drawings did not indicate the name and address of the person by whom they were prepared.
I have seen the documents which accompanied Mr Marren’s application of 26 March 1976. The application was accompanied by location maps and site maps but contained no drawings of floor plans, elevations or sections. The reason for this is, however, disclosed in the answer to s. 13 of the planning application form which, under the heading of ‘Other Relevant Details’, *601 contains the words ‘House Plans as previous application R.A. 1116’.
The north point is indicated on the site map but not on the location map. The site map and the location map do not indicate the name and address of the person by whom they were prepared. However, the planning application form indicates that they were prepared by Mr Dermot McCann and gives his address. As previously indicated there is no evidence that any official of the County Council was incommoded by the failure of Mr Marren to comply precisely with the provisions of the planning regulations. Indeed I do not see that anybody could have been incommoded by the fact that the name of the person who prepared the drawings is not written on the drawings when this information is supplied in the planning application itself in pursuance of a standard query designed to elicit this information.
If the matter were simply a matter inter partes I would incline to the view that the applicant had substantially complied with the planning regulations and that any non-compliance was covered by the principle of de minimis. However the matter is not simply an inter partes matter. Article 29 contemplates that the application and any plans, drawings, maps and particulars accompanying it will be made available to the public. It is at least possible that a member of the public might be misled or incommoded by the failure to include any drawings of floor plans, elevations or sections and by the failure to indicate the north point on all maps and plans.
With some hesitation I arrive at the conclusion that there was a failure to comply with the provisions of the permission regulations and that the application lodged by Mr Marren on 26 March 1979 cannot, therefore, be properly regarded as an application made ‘in accordance with the permission regulations’. For this reason also I would hold that the applicant did not get planning permission for the proposed development by default. I am reinforced in this view by a passage which appears in the judgment of the former President of the High Court Mr Justice O’Keeffe in The State (Murphy) v Dublin County Council [1970] IR 253 at p. 255. It behoves a person who seeks to obtain a planning permission through the default of the planning authority to be himself meticulous in the observance of relevant provisions of the Planning Acts and the regulations made thereunder.
O’Leary v. Dublin County Council
[1988] IR 150
O’Hanlon J.
16th May 1988
On the 10th March, 1986, a programme entitled “Dublin County Council – Programme for the Settlement of Travelling People” was adopted by the said council. The programme envisaged that two sites for travelling people would be provided in each electoral area within the county, and the two sites later adopted for the Rathfarnham electoral area were:
(a) Dodder Park Road (south side – on County Council land), and
(b) Templeogue (east of the entrance to Cherryfield House).
In an affidavit sworn on behalf of the respondents, Michael Galvin, administrative officer, deposes that considerable difficulty arose in providing sites in this and other electoral areas due to the fact that there was very little undeveloped land available in certain areas. In the Rathfarnham electoral area the sites were located on the only two stretches of land in the area which were owned by the council.
The applicants are residents in the Templeogue area surrounding the Cherryfield Linear Park and claim to represent some 300 residents who wish to oppose the proposal to locate one of the halting sites on the site proposed by the County Council in that area. They contend that the Cherryfield Linear Park (within whose boundaries the County Council propose to locate the halting site) is designated as a high amenity area in the county development plan; that the use of the site for the purpose proposed by the County Council would amount to a material contravention of the county development plan, and that this is not permissible by law save where the planning authority carry out certain statutory procedures for bringing about variations in the plan which have not been invoked by them in the present case.
An application for leave to apply for judicial review of the Council’s decision was granted by Egan J. on the 2nd December, 1987, for the purpose of enabling the applicants to apply for an order which would have the effect of restraining the County Council from proceeding further with the said project insofar as it would involve the provision of the proposed halting site at the place where it was proposed to locate it in Cherryfield Linear Park.
The case was very fully and ably argued before me by counsel for the applicants and by counsel for Dublin County Council, and my understanding of the submissions made is that the council accept that the project cannot at present be lawfully implemented if it, in fact, would involve a material contravention of the county development plan, but they dispute the contention made by the applicants that it would amount to such material contravention.
It is common case that Cherryfield Linear Park is zoned “G”, meaning thereby that it is a high amenity area. The county development plan spells out in some detail what is and is not permissible within the confines of such area. Paragraph 2.26 of the Dublin County Development Plan 1983 reads as follows:
“2.26.1 It is the policy of the Council to conserve areas of high amenity at present in use and to seek to expand both these and further areas to absorb further recreational use without damaging their amenities. Such natural areas include the sea coasts, mountains and areas fringing waterways, both river and canal. The Council will seek the creation of rights-of-way, pedestrian and vehicular and the provision of carparks where required, subject to the ability of these areas to absorb more recreational use without damage to amenities.
2.26.2 It will generally be the policy of the Council to prohibit development and to establish coastal or riverside walks on lands located between the sea, or rivers, and adjoining roads. There may, however, be areas where, due to the natural configuration of the landscape or the existence of woodlands, such total prohibition of development may be unnecessary. In such cases the Council will consider applications for development where the application relates to uses pertinent to coastal or riverside recreation within the recreational capacity of the area and would not damage the visual amenities or limit public access to the beaches or riverside.”
It may be noted in passing that the halting site proposed in the present case would be located between Firhouse Road and the river Dodder, and in close proximity to the river.
While any development of land by the council of a county in the county health district is an exempted development for the purposes of the Planning Acts – see s. 4 of the Local Government (Planning and Development) Act, 1963 – s. 39, sub-s. 1 of the same Act specifically prohibits the council of a county from effecting any development in their county health district which contravenes materially the development plan (as defined by s. 19, sub-s. 9 of the Act).
The topic of land use zoning is dealt with at pp. 113 to 128 (inclusive) of the county development plan. The purpose of land use zoning is stated in paragraph 3.4.1. as follows: “to indicate the planning control objectives of the Council for all lands in its administrative area.” Table 3.9 at p. 126 is intended to illustrate the acceptability or unacceptability of various uses for the use zoning objective”G” where land has been designated as being a high amenity area. The use classes are listed under three headings – “Permitted”, “Open for Consideration” and “Not Permitted.”
Uses shown as “Open for Consideration” are further defined as follows in paragraph 3.4.7: “not acceptable in principle and it is important to note that these uses will not normally be permitted.” Included in the table of use classes “Not Permitted” in zone ‘G’ are “Caravan Park-Residential” and scrap yard.
Caravan parks are defined as follows in Appendix A of the county development plan (at p. 301):
“Caravan Parks: Holiday
: The use of land for the accommodation of vehicle caravans or temporary chalets.
Residential:
The use of land for the accommodation of caravans designed specifically for year round human habitation.”
It would seem to follow that the use of lands in zone ‘G’ areas for residential caravan parks would, prima facie, constitute a material contravention of the county development plan. (See table 3.9 at p. 126 of the plan).
The respondent contends that it is legitimate to consider the extent of the area designated as a high amenity area – in this case some hundreds of acres – and the impact which would be made upon it by the proposed development, which in the present case would only involve the use of a very small site in a very large area of high amenity. In support of this contention it was further argued that screening of the site by the use of trees and shrubs would further minimise its impact on the surrounding area.
It was also submitted by the respondent that the proposed halting sites did not fall within the definition of “Caravan Park – Residential” as used in the county development plan, as the caravans concerned were not “designed specifically for year round human habitation”, but the evidence in the case confirmed that the caravans were so used – whether or not they could be regarded as suitable for such purpose.
Having considered all the evidence put before the Court and the legal submissions made on behalf of the applicants and the respondent, I have come to the conclusion that the creation of a halting site of the kind contemplated and its use for the purpose envisaged, while locating it in a high amenity area, would amount to a material contravention of the county development plan and the County Council would be acting ultra vires in proceeding with the project at this particular time in the location specified.
It would involve providing an area for residential accommodation for five families in caravans which would be provided by the families themselves. Initially the proposal also envisaged the provision of a small area for accumulation of scrap for each family, in recognition of the fact that many of the travelling people engage in acquiring and selling scrap materials in the course of trade, but this proposal was withdrawn in an effort to obtain the consent of the local community to allow the project go ahead in principle. The local residents are not convinced that the accumulation of scrap materials on and in the vicinity of the halting site will cease when formal permission for same is not forthcoming and I cannot say that there are no grounds for this apprehension on their part.
If an application were made by a private developer for permission to develop part of the lands in an area zoned as a high amenity area, by the erection of five dwellings for private residential accommodation, I have no doubt that it would be resisted strenuously by the planning authority on the basis that it would amount to a material contravention of the county development plan. I do not think a private developer would be allowed to argue that the area involved in his project was small in relation to the area comprised in a particular high amenity area, and that therefore the contravention, if any, was not “material”. I think the requirements of the planning law have to be applied with the same stringency against the local authority, in this case, as would be the case if the proposal came from a private developer. The very praiseworthy motives of the County Council in endeavouring to make provision for deprived classes and to do it in a manner which seeks to involve all electoral areas within their territory, are not sufficient to absolve them from compliance with the planning law.
I therefore propose to grant the relief sought by the applicants and I will make a declaratory order declaring that as matters now stand the provision of the proposed itinerant halting site at Cherryfield Linear Park, Firhouse Road, would constitute a material contravention of the terms of the Dublin County Development Plan, 1983, and that the respondent would be acting ultra vires in proceeding with the said proposed development. I will further grant relief by way of injunction restraining the respondent, until further order, from proceeding with the said proposed development.
South-West Regional Shopping Centre Promotion Association Ltd v An Bord Pleanála
[2016] IEHC 84
JUDGMENT of Ms. Justice Costello delivered on 4th day of February, 2016.
1. In these proceedings the applicants seek an order of certiorari setting aside the entire decision of An Bord Pleanála (“the Board”) dated 8th April, 2015, to grant planning permission to the second notice party (“the Developer”) and other declaratory reliefs in relation to a development of a large mixed retail and commercial use development at Parkway Valley, Singland, Co. Limerick (“the Development”).
2. The applicants argue that the proceedings raise an issue of planning law of fundamental importance. The issue centres on whether the Board has jurisdiction to grant a revision, or to make an amendment, to an extant planning permission other than in the very limited circumstances identified at ss. 146A-146D of the Planning and Development Act 2000, as amended (“the 2000 Act”). Other ancillary arguments are also advanced as discussed further below.
3. The first applicant is a company incorporated with the object of promoting and protecting the trade and business interests of persons and companies carrying on business in the Crescent Shopping Centre, Dooradoyle, Limerick. Membership of the first applicant is comprised of the tenants of the Centre. The Crescent Shopping Centre comprises approximately 32,000 m2 of retail space with approximately 90 retail tenants. If developed, the Development would be in direct competition with the Crescent Shopping Centre.
4. The second applicant is a private unlimited company with share capital incorporated in the State under the Companies Acts 1963-2006. It is a subsidiary of a group of companies engaged, inter alia, in holding property. At all material times the second applicant was the registered owner of the Crescent Shopping Centre, Limerick from 13th November, 1992, to 16th December, 2014, when it divested that interest in favour of another subsidiary within the group of companies. The second applicant continues to have an interest in the adjoining lands.
5. Leave to challenge the decision of the Board was granted by Binchy J. on 26th May, 2015, on the following substantive grounds:-
“1. An order of certiorari setting aside the entire decision of An Bord Pleanala dated 8 April 2015 to grant planning permission to the [Developer]. The said decision bears the reference number PL91.243874 (Reg. Ref 14/828, Limerick City and County Council)…
2. A declaration that the said decision and/or the grant of planning permission are invalid and void ab initio;
3. A declaration that An Bord Pleanala was not entitled to treat the application for planning permission on the basis that it represented a ‘revision’, ‘variation’ or ‘amendment’ of earlier planning permissions;
4. A declaration that An Bord Pleanala was required to assess the application for planning permission on its own merits, by reference to the current versions of the relevant planning policy documents, in particular, the statutory development plan; the statutory local area plan, statutory guidelines; regional planning guidelines; and retail strategy;
5. A declaration that the application for planning permission must be subject to environmental impact assessment in accordance with the requirements of the Environmental Impact Assessment Directive (2011/92/EU) and the implementing provisions under Planning and Development Act 2000 (as amended)”.
Background
6. On foot of a series of planning applications made by Alocin Ltd., commencing in July, 2004, Limerick County Council 1 granted planning permission for the construction of a mixed-use development at a site located at Singland, Co. Limerick, an out of town located on the outskirts of Limerick City. The initial planning application was made under reference no. 04/3700, which was granted permission on 15th August, 2006, for the following development:-
“…construction of mixed use commercial and leisure development incorporating public park. Construction of 2 no. main anchor stores and 46 no. retail/commercial units; restaurants; foodcourt comprising of 8 no. separate outlets; family leisure-plex; public library; creche; administration; staff facilities; 10 screen cine-plex; surface and basement mulit-story (sic) car parking; 2 no. service yards; 9 no. ESB substations, pumping station, signage, mast sign, landscaping and associated site and development works.”
7. Thereafter, a number of further planning permissions were granted by Limerick County Council on the following dates: 25th January, 2007 – PA Ref. No. 06/3211; 29th March, 2007 – PA Ref. No. 06/4103; and 11th October, 2007- PA Ref. No. 07/1024. Each of these grants of Planning Permission varied or amended the original or parent grant 04/3700. In each case the duration of the planning permission was linked to the duration of the original grant 04/3700. In each case the application was in respect of the entire development as revised and amended by the new application and applied to the entire site. The drawings filed showed the proposed development based upon the previously permitted development with the amendments and revisions sought in the new application. This was done following consultation with the Planning Authority in order to present the application and the effect of the application on the existing grants of permission as clearly as possible. Thus, there were separate grants of planning permission for one composite development. All of these grants were made by the then Planning Authority, Limerick County Council by reference, inter alia, to its current development plan.
8. Due to the severe economic turmoil commencing in 2008, development on the site ceased in 2009 by which stage approximately €35 million had been expended in partially carrying out the Development. The planning permissions were due to expire so applications were made to extend the duration of the permissions. On 16th December, 2011, the Planning Authority made a decision, pursuant to s. 42A(1)(a)(i) of the 2000 Act, to grant an extension of duration in respect of four planning permissions, register reference numbers 04/3700, 06/3211, 06/4103 and 07/1024. The duration of each planning permission was extended to 14th August, 2016. In so deciding, the Planning Authority was satisfied that development had commenced on the site before the expiration of the life of the existing planning permissions; that substantial works had been carried out pursuant to the permissions during the period and the Planning Authority believed that the Development would be completed within a reasonable time.
9. On 16th December, 2011, the Planning Authority refused an extension of duration in respect of two further planning permissions bearing register reference numbers 08/645 and 09/236.
10. In 2010, Limerick City and County Council adopted two new Development Plans for the City and the County of Limerick 2010-2016. These plans adopted objectives and policies in relation to retail development which differed significantly to those applicable under the previous development plan applicable to the site at Singland. In particular, the plans favoured the location of retail development in the city centre and stated that grants of permission for further retail development at out of town locations shall not be granted. The Development was classified as an out of town location.
11. The Developer acquired the interest of Alocin Ltd. in the Development with the benefit of the planning permissions (as extended) and the partially erected development on site and was anxious to complete the development of the site.
The 2014 Application and the decision of the Planning Authority
12. By application bearing register reference 14/828 (the “2014 Application”), dated 2nd July, 2014, the Developer applied to the new Planning Authority, Limerick City and County Council, for a further planning permission on the site. It applied for development consisting of revised proposals for the completion of the development and the revisions/amendments included a reconfiguration of the permitted internal layout including the omission of the second floor level, revised proposals for the overall internal road and parking layout and service arrangements and revised proposals for external elevations and signage and completion of hard and soft landscaping and associated site and development works as previously permitted. The proposed development indicated that it would involve an overall gross floor area of 63,712 m2, less than that permitted by the extant planning permissions (73,142 m2).
13. The second applicant submitted an observation to the Planning Authority objecting to the application. A legal submission was advanced by its solicitors, Arthur Cox, by letter dated 30th July, 2014. At pp. 2 and 3 of the letter they stated:-
“The application is described as revised proposals to include revisions and amendments to ‘planning reg ref. 04/3700, 06/3211, 06/4103 and 07/1024 for the completion of the development to include revision and amendments to accommodate a gross floor area of 63,712 sqm’. In effect, this is an application to modify and complete the works as described in the existing permissions and is in all other respects bound by the conditions attached to the previous permissions including the duration of those permissions, unless where a departure therefrom is authorised by any new permission granted. We consider that it would be appropriate for any permission granted in this case to be conditioned appropriately, as has been done before, by reference to the governing permissions referenced in the application description…
It is instructive that the fee which has been calculated and paid by the developer to accompany this application is that which applies to minor variations, thereby indicating the reliance upon the original 4r permissions recited in the description of the proposed development. However in seeking to modify those existing permissions, the Developer is seeking a five year permission for proposed amendments to the permitted development. If the permitted development as proposed to be modified under the governing 04-07 permissions is built by 2016 then there should be no issue as to timing, and this new application will live on for 5 years. If, on the other hand, the development as proposed to be modified is not built by 2016 then those elements which the Developer seeks to modify by the new application cannot be lawfully completed and so wither with the permitted development under the 04-07 permissions. It is submitted that any other outcome is impermissible in the context of the application before the planning authority, as it is not a freestanding new planning application but one which is based upon the previously permitted development, to include its already extended duration. In so doing, it must fall to be decided within the terms of those permissions save where modified, and to be limited by condition to the time allotted thereto.
In the alternative, it is submitted that the developer ought to be required to make a fresh submission on a stand alone basis for a planning permission to include the appropriate application fee and all appropriate accompanying reports, when it is submitted it can seek to persuade the planning authority of the necessity to decide the application in its favour, by way of material contravention of the Development Plan.” (Emphasis added)
14. From this submission the following relevant points emerge. The second applicant’s legal advisors acknowledged that the application was to modify and complete the works as described in existing permissions. They noted and accepted that there existed four planning permissions which jointly governed the right to develop the lands at the site. They implicitly accepted the power of a planning authority (and by implication the Board) to amend previous extant planning permissions other than on the basis of the provisions of ss. 146A-146D of the 2000 Act. They considered it appropriate for any grant of permission in respect of an application to amend previous permissions to be conditioned by reference to the governing permissions. They submitted that the application fell to be decided within the terms of the existing permissions as it was based upon the previous development and that it be limited by condition to the duration of the prior permissions, 14th August, 2016. If that occurred, “there would be no issue as to timing.”
15. They did not take the view that the application to modify and amend existing permissions was legally impermissible or that the grant of permission could not be limited by condition to the duration of the existing permissions. Nor did they argue that the Planning Authority ought not to have accepted the application as a valid application.
Decision of the Planning Authority
16. The Planning Authority refused the application for permission on two grounds:-
“1. Having regard to the following
a) the primacy of Limerick City Centre as the Tier 1 retail centre within the Limerick Metropolitan Area as set out in the retail strategy for the Mid West Region 2010-2016, in the Limerick County Development Plan 2010-2016 and the Limerick City Development Plan 2010-2016;
b) the out of centre location of the proposed stand alone retail development, as defined within the retail hierarchy of retail strategy for the Mid West Region 2010-2012;
c) the overall size and scale of the proposed retail development;
It is considered that the proposed development would materially contravene the retail strategy for the Mid West Region 2010-2016, the Limerick County Development Plan 2010-2016 and Limerick City Development Plan 2010-2016. It is also considered that the proposed development would be contrary to the Guidelines for Planning Authorities Retail Planning, April 2012 issued by the Department of the Environment, Community and Local Government. Furthermore, it is considered that the proposed stand alone retail development would seriously injure the vitality and viability of the Limerick City Centre and existing District Centres and would seriously impact on the shopping role of these centres.
The proposed development would therefore be contrary to the proper planning and sustainable development of the area.
2. Having regard to the absence of the following;
(a) Environmental Impact Assessment
(b) Appropriate Assessment Screening
(c) Retail Impact Assessment
(d) Traffic Impact Assessment
(e) Flood Impact Assessment
(f) Work Place Travel Plan
(g) Sustainable Statement
It is considered that the proposed development would be contrary to the proper planning and sustainable development of the area.”
Appeal to the Board
17. The Developer appealed the refusal of the permission to the Board. The grounds of appeal included a report prepared by Ostick + Williams which purported to show the extent of the works carried out at the site as at 12th September, 2014. It set out the drawings which showed the permitted development and the proposed amendments to the permitted development.
18. The second applicant submitted to the Board that the decision of the Planning Authority ought to be upheld and permission refused on the appeal, on a number of grounds. In particular, it argued that the attempt by the Developer to seek planning permission from the Board for a period of five years was utterly and fundamentally inconsistent with the suggestion made by the Developer that the 2014 Application was merely an amendment or variation to existing permissions previously granted. Indeed, in the light of the fact that the duration of the initial permissions had already been extended by the Planning Authority to 14th August, 2016, this inconsistency was all the more apparent. In light of the view of the Planning Authority that the 2014 Application amounted to a material contravention of the relevant development plan at that time, s. 37(2)(b) of the 2000 Act, significantly limited the ability of the Board to grant permission. In particular, the Board must, before granting permission, be satisfied as to the matters set out in s. 37(2)(b) which, it submitted, did not apply to the application. It also argued that there was a requirement that a fresh Environmental Impact Assessment (“EIA”) be prepared. Among the reasons for this was the proposal in the 2014 Application that a partially constructed car park would be demolished. It also argued that in the light of the length of time that had elapsed since the initial grant of planning permission under register reference number 04/3700 (August, 2006), and the date of the application and the changes to the economic climate in the State during that intervening time, there was a requirement for a revised Retail Impact Statement.
The Inspector’s Report
19. The Inspector noted that the site area was 8.16 hectares and was presently occupied by the partially constructed foundations and substructure of a significant mixed-use development which was previously approved on site under earlier grants of planning permission. He noted that the proposed development consisted of revised proposals for the completion of the existing partially constructed development previously approved on site. The revisions/amendments to the approved scheme were set out in the public notices and included the reconfiguration of the permitted internal layout including the omission of the second floor level resulting in a decrease in the overall gross floor area of the development from 73,142 m2 to 63,712 m2, the revision of the overall internal road layout, parking layout and service arrangements, alterations to the external elevations and signage associated with the development and the demolishing/removal of 6,465 m2 of a partially completed decked car park structure. He set out the detailed relevant planning history in respect of the site. In so doing, he made clear that there had been a number of grants of planning permission which amended the original grants PA Ref. 04/3700 in a variety of ways. He noted that four of these grants of planning permission were extended until 14th August, 2016, as set out above.
20. In section 10 of the Report he dealt with the Development Plan and at 10.3 he dealt with the retail strategy for the Mid West Region 2010-2016. He noted that the strategy for Limerick city centre should protect and promote its role as a national tier 2 centre at the top of the Mid Western hierarchy and a gateway to western Ireland. In relation to out of centre development, it provided that planning permission shall not be granted for the provision of any more out of centre retail floor space.
21. At section 11, the Inspector set out his assessment of the issues raised on the appeal. He concluded that the key issues raised were (for the purposes of this application): (1) the principle and nature of the proposed development; (2) the EIA; and (3) the impact on the city centre/retail impact assessment. He identified the critical issue in the assessment of the appeal as whether or not the submitted proposal amounted to a new “standalone” application which should be assessed de novo from first principles or if it is simply amounted to the amendment/revision of the design and layout of an already permitted development. He reviewed the matter in detail and concluded that in his opinion it was clear that the subject proposal was intrinsically linked to the extant grants of permission on site. For that reason he was satisfied that the subject application could be reasonably described as amending an extant grant of permission and therefore there was no need to revisit the wider merits and overall principle of the mixed-use commercial/leisure development already permitted on site. Accordingly he accepted that the principle of this type of development was established by extant permissions.
22. He went on to consider whether it was necessary to conduct an EIA in respect of the application. He noted that the proposal involved the amendment of a partially constructed development which was previously approved on the site pursuant to a series of extant grants of permission. He noted that the original parent permission had been accompanied by an Environmental Impact Statement (“EIS”) on the basis that it exceeded the relevant threshold as set out in Class 10(b)(iii) of Part 2 of Schedule 5 of the Planning and Development Regulations 2001 as amended (“the Regulations”) (The construction of a shopping centre with a gross floor space exceeding 10,000 m2). He concluded that, as the subject proposal was limited to the amendment of the permitted development, and was not being assessed from first principles, that the submission of EIS pursuant to the Class 10(b)(iii) was not mandatory.
23. On the basis that the approved development had already been the subject of EIA pursuant to the requirements of the Regulations, and as the proposed amendments did not involve a change to or extension of the partially constructed/approved development which would result in an increase in size greater than 25% or an amount equal to 50% of the relevant threshold (whichever was the greater) as set out in Class 13(a) of Part 2 of Schedule 5 of the Regulations, the proposed development would not necessitate the preparation of an EIS. He noted that the subject application would not result in an increase in the size/floor space of the permitted scheme so as to warrant the submission of an EIS pursuant to Class 13(a) of Part 2 of Schedule 5 of the Regulations.
24. He addressed the question whether the demolishing of 6,465 m2 of a partially completed decked car park structure necessitated the submission of an EIS under Class 13(c) of Part 2 of Schedule 5 of the Regulations. It was his opinion that the works would be unlikely to have significant effects on the environment having regard to the criteria set out under Schedule 7 of the Regulations and therefore he concluded that they did not necessitate the submission of an EIS.
25. In considering the impact on the city centre/retail impact assessment, his opinion was that the Planning Authority focused heavily on matters (including retail impact) which would have already been considered as part of the Planning Authority’s determination of the original application for the substantial mixed-use commercial/leisure development permitted on site under PA Ref No. 04/3700 (as subsequently amended by PA Ref Nos. 06/3211, 06/4103 and 07/1024). These related to the wider merits and overall principle of construction of such a development on the subject site. He was of the view that there was no merit or necessity to revisit the wider merits or the actual principle which had been determined in respect of a planning permission which was still extant.
26. He assessed the subject application on the basis that it simply sought permission to modify the design and layout of the permitted development. He reviewed the proposed amendments to consider whether or not they gave rise to any significant additional planning considerations in terms of retail impact over and above those associated with the development approved under the extant grants of permission on the site. He was of the opinion that the proposed amendment did not give rise to any significant additional planning considerations in terms of retail impact and therefore were not the basis for refusing permission for the development sought.
27. He also considered the issue of the duration of the permission. The Developer submitted that there was no provision in the 2000 Act whereby a planning authority (or the Board on appeal) could grant planning permission for a period less than five years2. On the other hand, the second applicant submitted that as the proposal involved the amendment of an extant “parent” grant of permission it was inextricably linked to the terms and conditions of that permission and thus must wither on the same expiry date. The Inspector gave his opinion as follows:-
“11.7.2.2 I would reiterate that the subject proposal serves to amend an extant grant of permission and does not amount to a ‘standalone’ application to be assessed from first principles. Accordingly, I would suggest that it is entirely reasonable to require any grant of permission issued in respect of the subject application to be tied to the terms and conditions of the overriding ‘parent’ permission given that the implementation of the former is evidently reliant on the latter. Indeed, such an approach is commonplace and I am aware of various instances of same having been employed by both planning authorities and the Board on appeal.”
28. He concluded his Report by recommending that the Board overturn the decision of the Planning Authority and grant permission for the proposed developments subject to six conditions set out in his Report.
Decision of the Board
29. By Board Direction dated 31st March, 2015, the Board decided to grant permission generally “in accordance with the Inspector’s recommendation” subject to a number of conditions it issued its Decision in accordance with the Direction on 8th April, 2015. The reasons for the Board’s Decision included the fact that there were “extant permissions for a similar development on the lands in question” and that the 2014 Application “proposes a revised method of completing those partially developed permissions”.
30. Conditions 2 and 3 of the Board’s Decision provide:-
“[t]he period during which the development hereby permitted may be carried out shall expire on the 14th day of August, 2016.
Reason: To coincide with the expiry date of the parent permissions granted to applications planning register reference numbers 04/3700, 06/3211, 06/4103 & 07/1024.
3. Other than any departures specifically authorised by this permission, the development shall be carried out and completed in accordance with all of the terms and conditions of the parent permissions granted under planning register reference numbers 04/3700, 06/3211, 06/4103 and 07/1024, and any agreements entered into thereunder.
Reason: In the interest of clarity and to ensure that the overall development is carried out in accordance with the previous permissions.”
31. Further, the notes to the Board Direction are informative as to the reasoning for the Board’s decision:-
“Note 1: ‘The Board agreed with the Inspector’s analysis at Section 11.1 of his report that the subject application proposed a revision to an extant permission with a view to completing already commenced works. The Board also agreed that permission for these revisions for the purposes of completion should expire when the parent permission expires. The Board considered that any question of granting permission for a longer period would require consideration of the wider issues of planning policy as referred to in the Planning Authority reports and order.
Note 2: The Board considered that as the subject application involved completion of an extant partially developed permission with a revised design, and as this revision involved a considerable reduction in floor area, that the issue of material contravention did not arise.”
Grounds for review
32. The applicants argue that the Board treated the application/appeal as a proposed revision to extant planning permissions with a view to completing already commenced works. They say this was incorrect in principle. They say that the 2000 Act only allows for the possibility of amending existing planning permissions in the very limited circumstances set out in ss. 146A-146D of the 2000 Act. Other than these statutory provisions there is no power to amend, vary or revise an extant planning permission. In acting as it did the Board erred in law and acted ultra vires in reaching its Decision of 8th April, 2015.
33. Secondly, they argue that the Board failed to comply with the provisions of s. 34 of the 2000 Act (and as applied to appeals by s. 37 of the Act) in that the Board failed to have regard to the current version of the Statutory Development Plan, the Limerick County Development Plan 2010-2016 as required by s. 34, or the current version of the Statutory Local Area Plan, the Castletroy Local Area Plan 2014-2020 as required under s. 18 of the 2000 Act.
34. Thirdly, they say that the Board failed to have regard to the policies and objectives for time being of the Limerick County Development Plan3 and the retail strategy of the Development Plan as required under s. 143 of the 2000 Act.
35. Fourthly, they say that the Board erred in law by failing to require the Developer to carry out a Retail Impact Statement prior to the Planning Authority reaching its decision in circumstances where the original Retail Impact Statement in respect of the original application for planning permission on the site was dated 2006. The statement therefore related to a period when the economic climate in the State was considerably different to the conditions in 2014 and a failure to require the carrying out of an updated Retail Impact Statement effectively deprived the Planning Authority of being able to insist upon up-to-date assessments in relation to this element of town planning.
36. Fifthly, the Board erred in law and acted ultra vires in failing (1) to require the Developer to submit an EIS and (2) to carry out an EIA. The applicants submit that the nature and extent of the development was such as to trigger a requirement to carry out an EIA in accordance with the provisions of the Environmental Impact Assessment Directive (2011/92/EU) and Part X of the 2000 Act and Part X of the Regulations. They argue that the proposed development came within Class 10(b) (infrastructure) and/or Class 14 (works of demolition) of Part 2 of Schedule 6 of the Regulations and accordingly the Board was obliged to carry out an EIA but failed so to do.
37. In the alternative the applicants argue that if the appeal fell to be examined on the basis of Class 13 (changes or extensions) of Part 2 of Schedule 6 of the Regulations, the Board erred in law and acted ultra vires in failing to carry out any proper screening determination and failed to provide a reasoned screening determination pursuant to the provisions of Article 4 of the EIA Directive and pursuant to the provisions of Article 109 of the Regulations.
38. The applicants say that the Board erred in law and acted ultra vires in failing to comply with the provisions of s. 37(2) of the 2000 Act. The Planning Authority had refused planning permission on the basis, inter alia, that a proposed development would involve a material contravention of the Development Plan. In the premises, the Board’s powers to grant planning permission was confined to the circumstances set out under s. 37(2) of the 2000 Act and further the Board was under an enhanced duty to give reasons for its decision. The applicants argue that it is clear from the Board’s Direction of 31st March, 2015, and from its Decision of 8th April, 2015, that the members of the Board purported to second guess the Planning Authority’s determination that the Development involved a material contravention of the development plan. In so doing, the applicants argue, the Board acted ultra vires and in any event erred as a matter of law and purported to find that the issue of material contravention did not arise.
Submissions of the Board
39. The Board stated that the appeal concerned an application for permission for revised proposals to complete the existing partially completed development which had been carried out under the parent permissions. The parent permissions remained valid and the balance of the partially completed development could lawfully be carried out under those permissions until 14th August, 2016. In the circumstances, the Board was fully entitled to have regard to the existing partially complete development and the parent permissions.
40. The Board argued that the Planning Authority accepted the planning application as valid and the applicant did not challenge this decision within eight weeks of the date of the decision. The application was accepted as a revision or amendment of an earlier permission and not as an application for a new development with new retail floor space. The Board urged that if the applicants argue as a matter of principle that the application should not have been dealt with as a proposed revision of the parent permissions, the time for raising this issue crystallised when the Planning Authority accepted the planning application as a valid application on 3rd July, 2014. In the circumstances, the Board argued that any allegations that the Board was wrong to consider the application as a revision or amendment of an earlier permission cannot now be made as the applicants are out of time.
41. The Board argued that planning authorities and the Board have power to deal with applications to amend existing planning permissions and to deal with them on the basis that they revised or modified existing planning permissions and that the power to amend grants of planning permission was not confined to the provisions of ss. 146A-146D of the 2000 Act.
42. The Board pointed out that the majority of the policies relied upon by the Planning Authority to refuse permission effectively amounted to revisiting the merits of the parent permissions to allow development on the site. The Board submitted that as a matter of principle this was no longer possible in view of the fact that the parent permissions were still extant and it submitted that its approach was both entirely lawful and proper.
43. It argued that as a matter of fact the Board did have regard to the Limerick County Development Plan 2010-2016 and the Castletroy Local Area Plan 2014-2020 and the policies and objectives and the retail strategy set out in the Limerick County Development Plan 2010-2016 when assessing the 2014 Application. There was evidence before the Board in relation to these matters including the submissions and legal opinion furnished by the applicants. The Inspector’s Report also considered these issues. There was a considerable corpus of evidence relevant to these issues before the Board. The Board reached its determination as a specialist body exercising its expertise in planning matters following a consideration of the appeal and the proper planning and sustainable development of the area concerned and there was sufficient evidence before the Board upon which it could make the decision it reached.
44. The Board submitted that the proposed revision involved a considerable reduction in the floor area that had been permitted under the parent permissions. As such the Board was fully entitled to reach the view on the evidence before it that the application for planning permission did not involve a material contravention of Policy ED 13 (the policy not to permit any more retail floor space in out of centre locations).
45. The Board submitted that it was obliged to “have regard” to the ministerial guidelines, and the policies and objectives identified by the applicant. It submitted that the obligation to have regard to something is not an obligation to follow that thing. It submitted that although the current planning policy was not applied retrospectively to the existing permissions and the partially completed development, it was applied by the Board to the narrower question of whether the 2014 Application to amend the extant permissions should be permitted. There was no obligation on the Board to require the Developer to submit a retail impact statement. The Board was entitled to take the view that none of the revisions were such as to require a reassessment in terms of retail impact and that there was no significant additional planning considerations in terms of retail impact over those associated with the developments approved under the extant parent permissions.
46. The Board argued that it was entitled to assess for itself whether or not the proposed development materially contravened the development plan. As the Board concluded that it did not materially contravene the development plan it was not granting permission pursuant to s. 37(2)(a) of the 2000 Act. Accordingly, the restrictions set out in s. 37(2)(b) did not arise and the obligation to give a reasoned decision pursuant sub-para. (c) likewise did not arise.
47. The Board argued that for the reasons enunciated by the Inspector, an EIA was not mandatory. The application did involve demolition works which can in principle require an EIA, both classes identified by the applicants were subject to the proviso that the demolition itself be likely to have a significant effect on the environment. The Board argued that the demolition works in the proposal were fully described in the submissions and observations before the Board and in the application documents themselves. Consequently there was sufficient information before the Board to determine that these were not likely to have significant effects on the environment and thus no EIS was needed under Class 13(c) or required under Class 14 of the Regulations. They argued that the Inspector set out his reasons for these conclusions and the Board adopted that reasoning. Thus there was a proper screening exercise carried out as required by the Regulations.
48. In submissions to the Court, counsel for the Board conceded that if the Board was incorrect in treating the application as one to amend a partially constructed development with live planning permission and rather, that it was obliged to treat the planning application as a stand alone application, then an EIA was required and the applicants would be entitled to the relief sought on that basis.
Is there a power to amend an existing grant of planning permission?
49. The Board considered the application for planning permission, the file of the Planning Authority, including the observations of the second named applicant, the decision of the Planning Authority, the appeal by the Developer, the observations on the appeal including those of the second named applicant and the Inspector’s Report. It concluded that the application was not a stand alone application for planning permission. It formed the opinion that the application was to amend previously permitted planning permissions which had been extended until 14th August, 2016, on the basis that substantial works had been carried out pursuant to those planning permissions. The Board submitted that as a matter of fact it was entitled to treat the application as it did and as matter of law the Board had jurisdiction to amend the planning permission. The applicants argued to the contrary.
50. The applicants stated that statutory power to amend existing planning permissions in the form of ss. 146A-146D of the 2000 Act was introduced in 2006. Section 146A allows a planning authority (and the Board) to make amendments to a planning permission for the purposes of:-
“(i) correcting any clerical errors therein,
(ii) facilitating the doing of any thing pursuant to the permission or decision where the doing of that thing may reasonably be regarded as having been contemplated by a particular provision of the permission or decision or the terms of the permission or decision taken as a whole but which was not expressly provided for in the permission or decision, or
(iii) otherwise facilitating the operation of the permission or decision.”
Sections 146B and 146C allow the Board to alter the terms of, inter alia, planning permissions granted in respect of strategic infrastructure development (“SID”). Section 146D relates to railway orders. These are the only statutory provisions authorising the amendment of existing planning permissions. It is common case that the provisions of these sections do not apply in this case. The applicants submit that the fact that the Oireachtas expressly legislated for the making of alterations to existing planning permissions (other than those within the scope of s. 146A) but confined this to SID projects and railway orders precludes the reading into the legislation of an implied power to amend planning permissions in any other circumstances. The applicants therefore argue as a matter of principle there was no power to treat the application as an application to amend existing planning permissions and therefore, in so doing, the Board acted ultra vires and its decision is accordingly void.
51. The Board submitted that it has not been doubted that planning permissions could be amended in the course of carrying out the development authorised by the planning permission during the life of that planning permission. This has occurred over many decades and long before ss. 146A-146D of the 2000 Act were enacted in 2006. There is nothing in the Act which precludes a power to amend planning permission. It is commonly done for technical reasons, on site reasons, commercial reasons and other reasons. Where an existing planning permission is varied it is normal to include a condition that the new planning permission be built in accordance with the parent planning permission save as varied by the new grant of planning permission. It is usual to limit the life of the new planning permission to that of the parent planning permission. If there was no such implied power to amend planning permissions the planning code would become unworkable and extremely burdensome in respect of all but the simplest of developments. Any time an amendment (other than a clerical amendment) was sought a fresh application for planning permission in respect of the entire development would have to be submitted. Each and every such application would be treated as a stand alone application to which the full panoply of provisions of the 2000 Act, the Regulations and EU Directives would apply regardless of the nature or scale of the proposed amendment to the existing grant of permission. This would place an extraordinary burden upon developers, planning authorities and also the public.
52. The Developer also submitted that the restricted application of ss. 146A-146D of the 2000 Act should not be interpreted as precluding a wider power to amend a planning permission by way of a subsequent planning permission. It noted that in the case of Dwyer Nolan Developments Ltd v. Dublin County Council [1986] I.R. 130, Carroll J. held at pp.138-139:-
“…permission to construct a new building to replace existing buildings had to be carried out in all its specifications as the permission was not devisable at the option of the owner. He was obliged to carry out all the works or obtain a variation…Similarly, I am of opinion that severance of planning permission of an overall building scheme can take place within the limits I have indicated with the effect that the development which has been carried out is authorised. But I am not prepared to hold that the developer can draw on any other existing permission to complete the unfinished scheme. The developer must apply for further planning permission in respect of the completion incorporating, either directly or by implication, the partial development which has already taken place.” (Emphasis added)
Thus the High Court held that it was possible to apply for a further planning permission to alter the terms of an existing permitted development “incorporating, either directly or by implication, the partial development which has already taken place.” The Developer argued that had it been the intention of the Oireachtas to legislate so as to exclude a wider power to amend a planning permission by way of a subsequent planning permission other than is set out in ss. 146A-146D, then the Oireachtas would have done so. In failing to do so the Oireachtas effectively approved the well established practice in relation to applications for completion of development other than in accordance with the relevant permissions granted.
53. I accept the submissions of the Board and the Developer. In my opinion the Oireachtas was entitled to take notice of, and have regard to, the very widespread practice of amending planning permissions in the manner which has occurred here when it enacted the provisions of ss. 146A-146D of the 2000 Act in 2006. In the decades preceding this enactment, there had never been a suggestion that the many amending grants of planning permission by planning authorities and the Board were all ultra vires and void. I do not believe that in enacting the provisions of ss. 146A-146D, the Oireachtas intended to radically and drastically limit a widespread existing power to grant planning permissions which amended existing extant planning permissions. Furthermore, I do not accept that if this had been the intention of the Oireachtas that it would not have made such intention explicit and clear. Until the applicants advanced this argument in this case neither the Board, the Planning Authority, professional planners, nor indeed the applicants’ solicitors had believed that the sole power to amend planning permission was to be found solely and exclusively in ss. 146A-146D of the 2000 Act.
54. On the contrary, had the Oireachtas been of the view that (a) there was no power under the existing planning code to amend planning permissions by applying for, and obtaining, grants of planning permission which revised or modified extant grants of planning permission, and (b) despite the absence of any such power, there was a long standing common practice to grant such permissions, and the Oireachtas wished to ensure that there was to be a very limited power of amendment confined solely to the provisions of ss. 146A-146D of the 2000 Act, it would have made it clear that the power to amend planning permissions was confined solely to the provisions it was enacting. Such a significant change would not have been left to be devined by implication, as is the case here, if the applicants’ argument is correct. I believe it is not.
55. I am reinforced in this conclusion by the provisions of the Planning and Development Regulations 2001 as substituted in 2006. Under the Regulations it is permissible to pay a reduced fee for an application for planning permission under Class 13, rather than the full fee that would otherwise be payable in respect of the entire development under Class 14, as occurred in this instance. Furthermore, Class 13 of Schedule 5 of the Regulations applies to “any change or extension of development already authorised, executed or in the process of being executed”. The existence of such a class and the right to pay a reduced fee for an application for such planning permission can only be consistent with the power of a planning authority and the Board to accept and adjudicate upon applications which involve minor variations or changes or extensions to extant planning permissions. This means that the Regulations recognise that there may be applications to amend existing planning permissions. Furthermore, it is clear that the second named applicant’s solicitors, Arthur Cox, in their submission to the Planning Authority, took no issue with the principle of applications for planning permission which seek to amend existing planning permissions which were not based upon ss. 146A-146D of the 2000 Act. They were quite clearly of the view that the Developer’s application was not a stand alone application for planning permission but rather was seeking to amend or revise existing planning permissions and they did not object to the application on that basis.
56. For these reasons, I reject the argument that the Board had no power to assess the 2014 Application on the basis that it was an application for permission to revise or modify existing permissions. Furthermore, it was entitled, on the facts, to assess it on that basis. Any objective, fair reading of the application, including the accompanying drawings, makes it clear that, in the words of Carroll J., it was an application:-
“…for further planning permission in respect of the completion incorporating, either directly or by implication, the partial development which has already taken place.”
Duration of the grant of planning permission
57. The applicants argued that the Developer’s application for planning permission ought to have been treated as a stand alone planning permission because it sought a planning permission of five years in duration. They argued that this was inconsistent with an application to amend existing planning permissions. It would either have the effect of extending the life of the existing planning permissions, which was not permissible. Alternatively, there would be impermissible confusion as to when the time for the execution of any particular part of the permission expired if different aspects of the overall permitted development were of different duration. This submission was predicated on the argument that in principle it was not permissible to grant a planning permission that was limited to the life of the extant planning permissions which were sought to be amended. This argument is of course, completely inconsistent with the submissions of Arthur Cox to the Planning Authority in July, 2014. They stated:-
“[w]e consider that it would be appropriate for any permission granted in this case to be conditioned appropriately, as has been done before, by reference to the governing permissions referenced in the application description…
[The application] must fall to be decided within the terms of those permissions save where modified, and to be limited by condition to the time allotted thereto.”
58. The common practice of amending existing planning permission involves limiting the duration of the subsequent amending grants of planning permission to the life of the original “parent” planning permission. Just as the Oireachtas may be deemed to have taken notice of the practice of amending existing planning permissions, so to it may be deemed to have taken notice of the manner in which the duration of the subsequent amending planning permissions was limited to the life of the original “parent” planning permission by an express condition to that effect. In this case, the four amending planning permissions granted to Alocin Ltd. were each granted in the normal way but were limited in time to the duration of the parent permission 04/3700. Furthermore, when the Planning Authority granted extensions of duration in respect of these planning permissions it granted them each to the same date, 14th August, 2016. There was nothing unusual in relation to this approach and no objection was taken on behalf of either of the applicants to these decisions.
59. The applicants argue that the implication of a power to amend existing planning permissions where the amending planning permission must be of five years duration, would have the effect of extending the duration of planning permissions beyond the natural cycle of development plans in a manner which fundamentally undermines the primacy of the development plan. Thus, they submit, there can be no such implied power to amend planning permissions. Development plans are replaced every six years and are one of the major means by which changes in planning policy are effected. The applicants argue that the six year planning cycle of the statutory development plan (and ministerial guidelines) is central to the planning code. If a grant of planning permission of five years duration was amended after four years by a further grant, which likewise had a duration of five years, it is possible that the original grant of planning permission for development could have been granted in accordance with one development plan but actually be carried out during the currency, not of the next development plan, but the one thereafter. They argue that as a matter of principle this is clearly impermissible and undermines the arguments that there is an implied power to amend existing planning permissions and that the amending permissions cannot validly be granted for a period of five years.
60. This argument is predicated upon the contention that it is not permissible to so extend the lifetime of a grant of planning permission that it extends not only into the next development plan cycle but also into the one following.
61. However, this is precisely what the Oireachtas has permitted in relation to the power to extend the duration of planning permissions pursuant to s. 42A of the 2000 Act. Section 42A(1) provides:-
“[o]n application to it in that behalf a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that each of the following requirements is complied with:
(a) either –
(i) the authority is satisfied that –
(I) the development to which the permission relates was commenced before the expiration of the appropriate period sought to be extended,
(II) substantial works were carried out pursuant to the permission during that period, and
(II) the development will be completed within a reasonable time,
or
(ii) the authority is satisfied-…
(II) That there have been no significant changes in the development objectives in the development plan or in regional development objectives for the area of the planning authority since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area4,
(III) That the development would not be inconsistent with the proper planning and sustainable development of the area having regard to any guidelines issued by the Minister under section 28, notwithstanding that they were so issued after the date of the grant of permission in relation to which the application is made under this section…”
62. The application to extend a permission must be made in the last year of the life of the existing permission. The permission may be extended for five years, thereby giving a planning permission of between 9 and 10 years duration. It is thus clear that it is permissible to extend a planning permission across three cycles of development plans. It follows that the principle advanced by the applicants in this case is subject to exceptions. The Oireachtas has clearly taken the view that where a developer has carried out substantial works it should be giving an opportunity to complete the development within a reasonable time. In principle therefore the Oireachtas accepts that in appropriate circumstances, such as where there have been substantial works carried out pursuant to a grant of planning permission, the evolving planning policy will not prevent the completion of such developments even where they would otherwise be incompatible with evolving plans and policies.
63. I am satisfied that the possible prolongation of the duration of a particular planning permission by the granting of an amendment to an extant permission is not invalid or impermissible as a matter of principle. Thus, I reject the applicants’ argument that there can be no implied power to amend planning permissions based upon the argument that it involves impermissible encroachment on evolving planning policy. Separately, I am satisfied that the Board was entitled as a matter of principle to limit the duration of the grant of planning permission in the manner it did. Further, the fact that the Developer had sought a grant of planning permission on 2nd July, 2014, for a permission of five years duration did not mean that the application was in fact a stand alone new application for planning permission and that it therefore did not constitute an application to amend the existing partially constructed and incomplete retail/commercial development.
64. I conclude that the Board had jurisdiction to treat the application for planning permission as a “revision”, “variation” or “amendment” of existing planning permissions and that it acted intra vires in assessing the application as an application to amend or vary an existing planning permission. It acted intra vires in limiting the duration of the permission to that of the permissions being amended or varied.
How should an application to amend an existing planning permission be assessed
65. The applicants argued that the Board erred in law in failing to assess the entire Development – as opposed simply to the variations – on the merits in the light of the current development plan, ministerial guidelines and other current planning policies and objectives. The Board and the Developer argued that the Inspector and the Board assessed the application correctly. In particular, they both submitted that it was neither necessary nor appropriate to revisit the principle of the grant of planning permission for development of the scale and nature at the location of the site as the application was not for a stand alone development but was for amendments to permit the completion of extant planning permissions which had been partially and substantially constructed. There was an existing right to develop a large hotel/commercial/leisure complex on the site.
66. It is very relevant to note that the extant planning permission had been extended pursuant to s. 42A of the 2000 Act. The section is of assistance in determining the basis upon which a planning authority ought to assess an application to amend a grant of planning permission which has been extended pursuant to s. 42A. It is clear that if the duration of the planning permission is to be extended pursuant to s. 42A(1)(a)(ii), that the planning authority revisits the question of the proper planning and sustainable development of the area in the light of any significant changes in the development objectives in the development plan or in the regional development objectives for the area or any guidelines issued by the Minister which post date the original grant of planning permission. This requirement does not apply to extensions pursuant to s. 42(1)(a)(i) where a developer has carried out substantial works pursuant to the permission during the lifetime of the permission. The Oireachtas has clearly formed the view that the developer may be entitled to an extension of the period of that planning permission notwithstanding the fact that the development in question may no longer be compatible with new ministerial guidelines or the most up-to-date planning policies and objectives. The Oireachtas has decided that a developer who has carried out substantial works should be giving a reasonable opportunity to complete the development within a reasonable time.
67. The Oireachtas has struck a balance between the desirability of giving primacy to the evolution of development plans, objectives and policies and ministerial guidelines on the one hand, and the interests of individual developers who have made significant commitments on foot of grants of planning permission on the other hand. It is also in the best interests of all concerned that the number of partially constructed, incomplete developments should be kept to a minimum. The balance has been struck notwithstanding the fact that the continuance of the permissions may well conflict or be incompatible with more up-to-date planning policies or ministerial guidelines.
68. I see no reason in principle why an extended planning permission may not be amended in the same manner as a planning permission may be amended within the normal life time of the permission i.e. by imposing conditions that save, as amended, the planning permission be carried out in accordance with the terms of the extant planning permission and that the duration of the amending permission is linked to the duration of the extended planning permission. That being so, it follows that any application to amend a planning permission which was extended pursuant to s. 42A(1)(a)(i) should likewise not revisit the principle of the permitted development on the site in question by reference to evolving planning policies and ministerial guidelines. To hold otherwise would be to undermine balance struck by the Oireachtas between sub-paras. (a)(i) and (ii) of s. 42A(1).
69. This is not to say that the application to amend the extant grant of planning permission is not to be assessed by the planning authority or the Board by reference to the current development plan, local area plan, regional guidelines and ministerial guidelines. The application is to be assessed in the normal way but it is the proposed amendments or revisions only that are to be assessed. The parts of the development which are not modified or varied have the benefit of a valid planning permission and thus issues relating to the totality of the development (as opposed to the modifications) should not be revisited. If a site had planning permission for residential development and the site was now no longer zoned residential, an application to alter the density of the proposed residential development could not be rejected on the basis that residential development was no longer permitted on the site. However, the issue of whether or not the variation of the density was permissible is to be assessed by reference to the current planning policies and objectives and guidelines (be they to increase or reduce densities), albeit applied to an area in which the development would not be permitted under those policies.
70. In this case, four grants of planning permission were extended in respect of the Development on the site pursuant to s. 42A(1)(a)(i) up until 14th August, 2016. This means that the Development is permitted notwithstanding the significant changes that occurred in the objectives of the development plan or the regional development objectives or ministerial guidelines. If the application to amend those existing permissions as extended had to be considered in the light of significant changes in the development objectives in the development plan or in the regional development objectives for the area or in the light of guidelines issued by the Minister under s. 28 this would have the effect of applying the provisions of sub-para. (ii) to the extension granted under sub-para. (i). Such a conclusion would effectively deprive the Developer of the full extent of its rights pursuant to the extensions already granted.
71. I conclude that the correct basis upon which to assess an application to amend existing planning permissions is to assess the proposed changes, variations and amendments in the light of all applicable current development plans and ministerial guidelines and other planning policies. In light of those matters, the proposed amendments should be assessed to see whether they meet the requirements of proper planning and sustainable development for the area. Matters that are the subject of an extant grant of planning permission ought not to be reassessed. Accordingly, I hold that the Board was required to assess only the modifications to the Development in the application to amend the existing planning permissions for the Development. It was required to assess those elements on their own merits by reference to the current versions of the relevant planning policy documents, in particular, the statutory development plan, the statutory local area plan, statutory guidelines, regional planning guidelines and retail strategy.
Is the application out of time?
72. Both the Board and the Developer submit that the applicants’ case in relation to the power to amend existing grants of planning permission is out of time. They argue that the application of 2nd July, 2014, was clearly an application to amend the existing grants of planning permission. The fee paid was pursuant to Class 13. The Developer did not pay the Class 4 fee of €38,000 which would have applied to a development of a shopping centre of this scale had this been a stand alone application. The application was accepted as a valid application by the Planning Authority on 3rd July, 2014. The second named applicant’s solicitors acknowledge that the application was to amend the existing planning permissions. They say that the decision of the Planning Authority to accept the application as a valid application for planning permission when it was clearly an application to vary or modify existing planning permissions ought to have been challenged within eight weeks of 3rd July, 2014, had the applicants wished to argue that there was no power to amend the existing planning permissions and that any case which the applicants now seek to advance based on the alleged invalidity of the application for planning permission is out of time, as it was not made by 27th August, 2014.
73. I accept that there is a clear and well established obligation on parties to raise challenges to matters as they arise and the legislative policy is not to permit parties to “sit” on their complaints to the prejudice of the exercise of public (and private) resources in the planning process when same could be arrested if a potential challenger was to bring his point when it arose.
74. Section 50(2) of the 2000 Act provides that “[a] person shall not question the validity of any decision made or other act done by… a planning authority… in the performance or purported performance of a function under this Act”. Section 50(6) imposes a strict limitation period of eight weeks beginning on the date of the decision or, as the case maybe, the date of the doing of the act by the planning authority.
75. In Linehan v. Cork County Council [2008] IEHC 76 at p. 31 Finlay Geoghegan J. stated:-
“…it may no longer be safe for an applicant to await a final planning decision to which s. 50 of the Act of 2000, as inserted by the Act of 2006, applies before making an application for judicial review, if the grounds include questioning the validity of an earlier procedural decision or act done by the planning authority. Such decisions or acts may now have to be challenged as they occur…
Sections 50(2)(a) and 50(6) will have to be construed in the context of the clear intention of the Oireachtas in the Act of 2000, as amended by the Act of 2006, to impose strict and short time limits for the challenging of decisions in the planning process”.
76. In MacMahon v. An Bord Pleanála [2010] IEHC 431 Charleton J. held:-
“6. The Act of 2000 as first promulgated, and prior to its amendment as aforesaid, prohibited the questioning outside the relevant time limits of any application for planning permission, which included an application on appeal to the Board, or any procedure by a local authority in respect of its own development under s. 179 or any confirmation of a compulsory purchase order under section 216. These, basically, are all planning permission decisions, as opposed to administrative steps that lead to such decisions. The amendment introduced by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006, in force since 17th October 2006, extends the remit of judicial review to ‘any decision made or any other act done by’, and in the following subsection ‘a decision or other act’ of, the planning authority or the Board on appeal. Previously, it was clear that a final decision had to be reached before a judicial review could be commenced. Finlay Geoghegan J. in Linehan v. Cork County Council [2008] IEHC 76, (Unreported, High Court, 19th February, 2008) offered a view, in respect of the amendment to the Act as it now stands, that it might no longer be safe for an applicant to await a final planning decision before commencing judicial review proceedings. She queried as to whether decisions of a procedural kind during the course of an application might have to be challenged as they occur.
7. The view as expressed by Finlay Geoghegan J. is correct. In passing s. 50, and then amending it so as to extend its strictures to administrative steps, the Oireachtas clearly intended to impose strict time limits for the challenging of decisions in the planning process by way of judicial review.”
77. The Board states that if the applicants’ case is that no amendment to the parent permissions could be permitted (save in accordance with ss. 146A-146D which were never invoked or conceivably relevant at any point), then the applicants’ real complaint is that this was a planning application which never should have been accepted as a valid application and it should not even have been determined.
78. It submits that in considering this argument the Court is entitled to have regard to what in substance these proceedings seek to impugn. In this regard they rely upon the decision of Kelly J. in Kinsella v. Dundalk Town Council [2004] IEHC 373 where he held (at p. 10):-
“I took the view that it was quite clear that the whole thrust and ambition of these proceedings was to quash the decision of 3rd August, 2004. As the applicant was quite plainly questioning the validity of the decision to grant planning permission he could not avoid or evade meeting the necessary threshold of proof required under s. 50 of the Planning and Development Act, 2000. Indeed as I pointed out in giving my ruling on this topic, if the applicant were correct in his submission in this regard an absurd result could be achieved which would be entirely contrary to the letter and intent of s. 50.”
79. The Board concludes by saying that if the applicants’ case is that there is no basis in law for the Developer’s application to be made then the applicants are out of time. The challenge should have been brought within eight weeks of the application for planning permission being accepted as valid by the Planning Authority.
80. In reply, the applicants say that the decision of the Planning Authority to refuse the application for planning permission issued on 22nd August, 2014, within the eight weeks allowed for seeking judicial review of the decision to accept the application for planning permission as valid on 3rd July, 2014. That being so, they rhetorically ask “what decision was to be challenged or quashed?” They say it would be futile not to say farcical for the applicants to have applied to quash the decision of 3rd July, 2014, in the light of the decision of 22nd August, 2014.
81. There is considerable practical merit in this submission. So how are the principles of Lenihan and MacMahon to be applied in these circumstances? I do not accept that the decision of the Planning Authority to accept the application as a valid application for planning permission can be regarded as a provisional decision, as was argued by the applicants. Article 22 of the Planning and Development Regulations 2006 (S.I. 685 of 2006) requires that a planning application complies with certain requirements including the payment of the appropriate fee as calculated by reference to Schedule 9. There is a considerable difference between a Class 4 Fee – €38,000.00 – and the Class 13 Fee paid here – €816.00. If the Planning Authority believed that this was an application for stand alone planning permission of a very substantial commercial mixed-use development of more than 63,000 m2 it could not have accepted the application as valid in the absence of a fee of €38,000.00. This is because Article 26(3) of the Regulations provides that “[w]here, following consideration of an application… a planning authority considers that any of the requirements of articles 18, 19(1)(a) or 22…has not been complied with … the planning application shall be invalid.”
82. The applicants’ argument potentially undermines the decisions in Lenihan and MacMahon. They rely upon Dunnes Stores v. An Bord Pleanála (Unreported, High Court, McGovern J., 21st May, 2015, ex tempore) where the learned High Court judge refused leave to apply for judicial review of the first instance decision on the basis, inter alia, that there was no extant decision capable of being challenged. He stated at para. 9:-
“[t]he provisions of s. 37(1)(b) of the Act are quite clear and unambiguous. The effect of that section is that once the Board made its decision, it has the effect of annulling the decision of the Planning authority, SDCC. That been so, there is no decision of SDCC which can be challenged. There is no basis upon which the court can go beyond the provisions of the Act. That would be clearly impermissible. At this stage there is simply no decision of SDCC to quash and, therefore, no basis upon which the court can accede to the application to join the planning authority as a respondent in the proceedings.”
83. The applicants say that this is authority for the proposition that a challenge to a decision of the Board does not involve “questioning the validity of” the first instance decision of the planning authority. There is no extant decision to challenge. It has been annulled by the decision of the Board. They argue that the statutory formula “shall not question the validity of” a decision presupposes that there is a valid decision in existence capable of being challenged. This, of course, is perfectly correct. However, up and until the decision of the Board there was an extant decision which was capable of being challenged and the issue is whether or not it ought to have been challenged within eight weeks of 3rd July, 2014, and not whether it is now impossible to challenge that decision.
84. Of more assistance is the decision of Herbert J. in McCallig v. An Bord Pleanála (No.1) [2013] IEHC 60. In that case an objector sought to challenge the Board’s decision to grant planning permission on the basis that the original planning application was invalid. (On the facts, the application had included the objector’s lands within the red line of the application site without her written consent). The Board and the developer had sought to defend the proceedings on the basis that the Board was not entitled to look behind the planning authority’s initial decision to accept the application as a valid application. This argument was rejected. The Court noted that non-compliance with the provisions of Article 22(2)(g) of the Regulations was the basis for the major part of the applicant’s challenge to the decision of the Board in her judicial review proceedings. The Court held at para. 55:-
“I am unable to accept the submissions made on behalf of the respondent and the second noticed party that this Court should not consider an application for judicial review taken against the respondent rather than the first notice party where the basis of the application is some alleged infirmity in the procedures adopted by the first notice party during the first stage of the two stage planning process.”
85. The Court accepted as correct the following passage from Hynes v. An Bord Pleanála & Ors (Unreported, High Court, McGuinness J., 10th December, 1997) at para. 62 of the judgment:-
“[t]here remains the question of the validity of the Developer’s original application. While the Judgment of Costello J. in the O’Keeffe case makes it clear that it is the decision of the Planning Authority that founds the jurisdiction of An Bord Pleanála, no question of the validity of the original application arose in that case, and I would not interpret the Judgment as meaning (as suggested by Mr. Collins) that An Bord Pleanála could simply ignore a situation were the original planning application was clearly invalid. I accept that the primary duty of vetting a planning application and ensuring that it is in accordance with the relevant planning regulations lies with the Planning Authority but one must ask whether An Bord Pleanála would have jurisdiction to adjudicate on an appeal where the application on its face was one which would be considered invalid under the criteria set out by the Supreme Court in the Frascati case? Surely the answer must be no, particularly bearing in mind the cross reference from s. 26(5) to s. 26(1) of the Act of 1963. It seems to me, therefore, that I should consider the validity or otherwise that the Developer’s original planning application.”
86. On the basis of the decision in McCallig, any issue in relation to the validity of an application for planning permission must be considered by the Board on any appeal to it. That being so, in effect the issue arises again once a valid appeal is lodged. The decision of the Board on the appeal will involve, inter alia, a decision as to whether or not there was a valid application for planning permission in the first place. Therefore any questioning of the validity of the decision of the Board on the appeal can include a challenge to the validity of the application for planning permission. In view of the fact that these proceedings were brought within the statutory limitation period of the date of the Board’s decision, I therefore am of the opinion that the applicants are not out of time for raising issues in relation to the validity of the application for planning permission in these proceedings.
Section 37(2) of the 2000 Act
87. The applicants argue that the fact that the Planning Authority decided to refuse permission on the grounds that the development materially contravened the development plan triggered the provisions of s. 37(2) of the 2000 Act. In particular, the Board’s jurisdiction to grant planning permission is restricted to the circumstances specified under s. 37(2)(b) and further the Board was under an enhanced duty to state reasons for its decision. Section 37(2) of the 2000 Act provides as follows:-
“(2) (a) [s]ubject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates.
(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—
(i) the proposed development is of strategic or national importance,
(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(iii) permission for the proposed development should be granted having regard to regional planning guidelines for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.
(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the requirements of s.34(10), indicate in its decision the main reasons and considerations for contravening materially the development plan.”
88. The applicants argue that the legal effect of the Planning Authority refusing planning permission on the grounds that the proposed development materially contravened the development plan was that the Board was only entitled to grant a planning permission where at least one of the four criteria described in sub-paras. (i), (ii), (iii) and (iv) of s. 37(2)(b) were fulfilled. As there was no suggestion that in fact any of these criteria were fulfilled the applicants contended that the decision to grant planning permission was made in breach of the requirements of s. 37(2).
89. In response the Board argues that under s. 37(2)(a) of the 2000 Act, the Board has the power to grant permission for development where the grant would materially contravene the development plan. Section 37(2)(b) makes clear that the Board may only grant permission in accordance with s. 37(2)(a) where at least one of the specific conditions set out in the subsection arise. The critical point is that a decision needs to be reached as to whether a development does or does not materially contravene the development plan. While clearly the planning authority may make that decision in the first instance, the Board may also make that decision and it may disagree with the planning authority’s assessment and decide that the proposed development in fact does not involve a material contravention of the development plan. This means that the Board will be proposing to grant a permission which was not a material contravention of the plan and therefore would not be purporting to exercise the power conferred by s. 37(2)(a) of the 2000 Act. That being so, the provisions of s. 37(2)(c) do not arise.
90. The applicants argued that as a matter of principle it was not open to the Board to revisit the determination of the Planning Authority as to whether or not the proposed development materially contravened the development plan as this would permit the Board to avoid the requirement of s. 37(2)(b). They say it is contrary to the clear, express words of the statute. The Board argued that it clearly has a jurisdiction to deal with the application de novo. It submits that if it was the intention of the Oireachtas that the Board would be in effect precluded from reaching its own view on the issue of material contravention of a development plan, then this would be clearly stated in the legislation.
91. I accept the submissions of the Board. It is fundamental to the 2000 Act (and its predecessors) that the appeals to the Board are heard de novo. Just as the Board must satisfy itself as to whether or not an application was in fact a valid application for planning permission in accordance with the Regulations, so also the Board must make its own determination as to whether or not the proposed application as a matter of law and fact would materially contravene the development plan. The determination of the planning authority on this one matter cannot limit the jurisdiction of the Board to deal with appeals in the manner contended by the applicants. This is apparent from a consideration of the provisions governing the grant of planning permission which materially contravenes a development plan.
92. A planning authority has power pursuant to s. 34 of the 2000 Act to grant planning permission which would materially contravene its development plan provided it follows the special procedure set out in the section for such permissions. It must publish a statutory notice indicating its intention to consider deciding to grant permission which would materially contravene the development plan. The notice must be published in a daily newspaper circulating in the area and the notice must be given to the applicant for planning permission, any person who made a submission or observation in writing in relation to the development to which the application relates and the prescribed bodies within the meaning of the Acts. The chief executive of the planning authority is then obliged to prepare a report for the members of the planning authority. The members are obliged to consider the report before passing a resolution approving the proposal of the chief executive to grant permission.
93. Obviously this procedure will not be followed where a planning authority decides to refuse an application for planning permission on the basis that it would materially contravene the development plan. If that decision is appealed to the Board, the Board nonetheless has power to grant a permission which would materially contravene the relevant development plan.
94. It appears to me that s. 37(2)(b) needs to be read in the light of the fact that the procedure for granting planning permission which materially contravenes the development plan as laid out in s. 34 of the 2000 Act will not have been followed, yet the Board may decide that, notwithstanding the fact that the application would materially contravene the provisions of the development plan, it is appropriate to grant planning permission. The Oireachtas has decided in those circumstances to limit the Board’s power to grant planning permission which materially contravenes the development plan to the four circumstances set out in these sub-paras. (i), (ii), (iii) and (iv) of s. 37(2)(b). I do not read this section as conferring the power on the planning authority to limit the jurisdiction of the Board in respect of appeals. The Board’s jurisdiction to hear and determine an appeal de novo as if the application for permission had been made directly to it is not affected by the provisions of s. 37(2)(b). Rather, the provisions of this section are designed to limit the Board’s jurisdiction to grant a permission in material contravention of the development plan where the Board itself forms the view that the proposed grant would materially contravene the development plan and the complex statutory procedure set out in s. 34 has not been followed.
95. For these reasons, I conclude that the Board was entitled to exercise its own expertise and determine for itself whether or not the 2014 Application materially contravened the development plan. Having concluded that it did not, the provisions of s. 37(2)(b) and (c) did not apply to the application. It therefore follows that the applicants’ arguments that the decision of the Board is ultra vires for failing to comply with these provisions must fail.
Material contravention
96. The applicants referred to the second note of the Board’s Direction. The note stated:-
“[t]he Board considered that as the subject application involved completion of an extant partially developed permission with a revised design, and as this revision involved a considerable reduction in floor area, that the issue of material contravention did not arise.”
The applicants concluded that the phrase “the issue of material contravention did not arise” suggested that the Board concluded that it did not have to decide the issue. They said that this was particularly so in the light of note 1 of the Board’s Direction which indicated that the “wider issues of planning policy” referred to in the Planning Authority’s reports and order did not arise for consideration. The applicants submitted that the evidence before the Court indicated that the Board did not in fact make a decision on whether the development involved a material contravention of the development plan. Rather, the language in note 2 indicated that the Board took the view that it was not necessary to resolve this issue in the context of an application to amend or revise an extant planning permission. Further, or in the alternative, if the Board did make a decision on material contravention then the Board failed to provide a proper statement of reasons in this regard.
97. The Board submitted that note 2 of the Board’s Direction clearly showed that the Board felt that there was no material contravention because of the “considerable reduction in floor area”. If the Board had been of the view that an amendment to an existing planning permission per se did not require to be assessed in light of, inter alia, the development plan then this comment would be irrelevant. The note therefore clearly indicates that the Board was aware of the requirement to consider the application in the light of the current development plan. It is abundantly clear from all the materials that were before the Board and from the Inspector’s Report that the issue of the application of the current development plan to the proposed development was considered in great detail.
98. It was submitted that if the Board were assessing the modified proposal as a first time, stand alone application for planning permission then there would be a serious issue as to whether a mixed-use centre with a very substantial retail component of the kind with which this case is concerned was consistent with the applicable policy. In particular, there would be an immediate issue concerning the permitted substantial retail floor space in this out of centre location. However, it was submitted, the Board was not considering whether to grant permission for the proposed shopping centre per se. The shopping centre had already been permitted and partially built in accordance with the relevant planning policies pertaining at the time. It was authorised and that permission could not be revoked through a refusal of the 2014 Application.
99. The Board submitted that it was not disputed that the planning application containing the modified proposal had to be assessed by reference to the current planning policy. It submitted that this was done. The proposal was to reduce, rather than to enlarge, the retail floor space in the Development. A reduction in the amount of retail floor space was entirely consistent with the policy objectives requiring that there be no more retail floor space permitted in out of centre locations. Consequently, it was said there was no material contravention in permitting a reduction in existing permitted retail floor space and it was in this context that the Board noted that “material contravention did not arise”.
Planning Policies and Guidelines
100. The applicants submit that the planning policy framework under which the original planning consents were granted had changed at all levels of the policy hierarchy including:-
a. Retail Planning Guidelines for Planning Authorities 2012
b. Mid West Regional Planning Guidelines 2010-2022
c. Retail Strategy for the Mid West Region 2010-2016
d. Limerick County Development Plan 2010-2016
e. Limerick City Development Plan 2010-2016
f. Castletroy Local Area Plan 2009-2015 and
g. Executive Report dated June, 2014.
101. The retail planning guidelines are ministerial guidelines issued under s. 28 of the 2000 Act. It is provided that the planning authorities and the Board “shall have regard to” the ministerial guidelines “in the performance of their functions”. The guidelines prefer the location of development within town centres. When the location of a proposed retail development is not consistent with the policies and the objectives of the development plan and/or the relevant retail strategy to support the city and town centre, then the development proposal must be subject to a sequential approach whereby sites for retail development are examined in order of priority. An out of centre site can be considered only in circumstances where the applicant demonstrates and the planning authority is satisfied that there is no site or potential site either within the centre of a city, town or designated district centre or on the edge of the city, town or district centre that is (a) suitable, (b) available and (c) viable. It is common case that the site in question is an out of centre site and that this sequential assessment was not conducted by the Board.
102. The retail strategy for the Mid West Region 2010-2016 comprises of Volume 5 of the Limerick County Development Plan 2010-2016. The strategy emphasises the importance of fostering development in Limerick city centre. The strategy referred to the Development and noted that while it could potentially provide a range of shopping facilities it was not yet fully built. It did not include the Development within the retail hierarchy and said that it should be treated as being out of centre in the consideration of any future planning applications.
103. The Limerick County Development Plan 2010-2016 adopted a set of retail policies based upon the retail strategy. The Planning Authority and the Board are to have regard to these policies. They focus on the application of the sequential approach in all retail applications and support and assist the role of the city centre and centres designated within the two stage retail hierarchy. Policies ED12 and ED13 were of particular relevance. Policy ED12 states:-
“The Council endorses the retail strategy for Limerick City Centre to:
(a) Protect and promote the City Centres role as a National Tier 2 centre at the top of the Mid West Hierarchy and a Gateway into western Ireland;
(b) Encourage the development of substantial new retail floor space in the City Centre and extensions thereto, in order to allow the city centre to recapture trade it has lost to other retail schemes across Metropolitan Limerick, and to reconfirm its position as the dominant retail location in the region;
(c) Adopt a pro-active stance to help assemble site and remove bureaucratic hurdles to facilitate retail development on complex urban sites.”
104. Out of centre retail development policy was dealt with in Policy ED 13 which states:-
“[i]t is the policy of the Council to implement the strategy for those parts of the Metropolitan Area of Limerick that fall within the county, and as follows:…
(3) in relation to Out of Centre locations,
(a) Not to permit any more retail floorspace;
(b) Not to permit any new foodstores, including discount stores. They should be part of existing or new centres;
(c) To consider new neighbourhood centre and/or local shops where they would serve new areas of housing development or to meet areas of deficiency.”
105. The applicants refer to objective ED 12 which states in brief that it is the objective of the planning authority to stringently apply the sequential test to the assessment of all retail proposals, other than those intended to serve a local population. Objective ED 13 states that it is the objective of the Planning Authority to require a detailed retail impact assessment for development on the edge or outside of identified locations above certain thresholds (1,000 m2 outside the metropolitan area).
106. The applicants say that the proposed development directly contravenes the strategic aims of the Limerick County Development 2010-2016 in respect of policies ED12 and ED13 in that:-
i. It fails to protect and promote Limerick city centre’s role as a national tier 2 centre; and
ii. It fails to encourage the development of substantial new floor space in Limerick city centre and extensions thereto, in order to allow the city centre to recapture trade it has lost to other retail schemes across metropolitan Limerick and to reconfirm its position as the dominant retail location in the region; and
iii. It requires the Planning Authority to permit more retail floor space in an out of centre location.
It also says that it breaches the policy objectives ED 12 and ED 13 in that there was a failure to require the Developer to demonstrate compliance with the sequential test or to provide a detailed retail impact assessment.
107. The applicants’ submissions failed to acknowledge that the parent permissions are extant and can be completed. They do not acknowledge the existing partially complete retail centre. They approach the assessment of the application on the basis that it is for a stand alone development and conclude that it would materially contravene the development plan and breach the policies and objectives cited above. However, I have held that as a fact, the application was to modify and vary an existing, partially completed retail centre with the benefit of extant permissions so that the development could be completed. Crucially, the application involved a reduction in the size of the development permitted under the parent permissions. In those circumstances, the grant of planning permission did not permit “any more retail floor space” as prohibited by objective ED 13 of the Development Plan in relation to out of centre locations. A greater floor space in the parent permission was already permitted and could have been developed had planning permission being refused by the Board. The fact that it was not yet constructed, did not mean that it was not part of the assessment of “more” out of centre retail floor space.
108. I agree with the submission of the Board that once it is accepted that the existence and contents of the parent permissions is a relevant consideration for the Board, as I have so held, then the applicants’ case in relation to material contravention of the development plans and failure to comply with ministerial guidelines effectively falls away. The points raised will relate to the principle of development of retail space of the scale already permitted at the location of the subject site. But it was not permissible to deprive the Developer of its existing right to develop the site in accordance with the extant permissions. The Board clearly did have regard to the development plan and took the view that a grant of permission for a reduction of retail floor space in an already permitted development was not contrary to the current planning policies. Although current policy was not applied retrospectively to an existing permission and partially complete development, it was applied to the narrower question of whether a proposed amendment to that permission should be permitted on foot of the application before the Board. It was not open to the Board to ignore this fact and to approach the appeal as if the entire Development was to be assessed on a de novo basis in the light of current policy.
109. The Board submits that there was no obligation on it to require the Developer to submit a retail impact assessment as no new assessment was needed. The Inspector stated at section 11.3 of his Report:-
“[f]rom a review of the available information, I am inclined to concur with the applicant that the Planning Authority’s assessment of the subject application and its ultimate decision to refuse permission is heavily focused on matters (including retail impact) which would have already been considered as part of its determination of the original planning application for the substantial mixed-use commercial / leisure development permitted on site under PA Ref. 04/3700/ABP Ref. No. PL13.214040 (as subsequently amended by PA Ref. Nos. 06/3211, 06/4103, 07/1024) and which relate to the wider merits and overall principle of constructing same on the subject site. In my opinion, these are issues which have already been comprehensively addressed by the Planning Authority in its assessment of PA Ref. No. 04/3700 and I can see no merit or necessity to revisit same as part of the subject application which simply seeks permission to modify the design and layout of the permitted development. In this respect, having reviewed the proposed amendments, I am satisfied that they do not give rise to any significant additional planning considerations in terms of retail impact over those associated with the development approved under the extant grants of permission on site. Furthermore, I am inclined to suggest that the subject appeal is not an appropriate forum to which to revisit the merits or otherwise in terms of retail impact of any previous decisions of the Planning Authority”.
It is clear that the Board considered the Inspector’s Report and agreed with it in this regard. There was sufficient evidence before the Board to enable it to determine that no retail impact statement was needed in order for it to determine the appeal.
110. As already noted, the Board submitted that if it were assessing the application as a first time, stand alone application for planning permission, then there would be a serious issue as to whether a mixed-use centre of this nature with a very substantial retail component was consistent with the applicable policy. But they were not. Instead, the Board was considering a narrower issue whether the already permitted and partially constructed shopping centre should be modified in accordance with the proposal contained in the planning application. This modified proposal had to be assessed by reference to the current planning policy. The proposal was to reduce rather than to enlarge the retail floor space in the Development. A reduction in the amount of retail floor space in the Development is entirely consistent with the planning objectives requiring that there be no more retail floor space permitted in out of centre locations. This was very different from a proposal to increase the floor space which could have been rejected, notwithstanding the extant permissions. As the principle of retail floor space of this magnitude at this location was determined when the parent permissions were granted it was not necessary to revisit the issues in relation to retail strategy for the purpose of determining this application.
111. Insofar as the applicants’ argue that the permission was still a breach of ED 12 which is to “[p]rotect and promote [Limerick] City Centre’s role as a National Tier 2 centre at the top of the Mid West Hierarchy and a Gateway into western Ireland”, this ignores the fact that the parent permissions still exist and the refusal of the amendments applied for would not have the effect of revoking or otherwise nullifying those permissions or changing the status of the partially completed development constructed at the location pursuant to them. The Board carefully limited the duration of the amending permissions to the residual lifespan of the permitted permissions so there can be no valid complaint that the grant of the permission somehow serves to continue expired policies beyond their natural lifespan. There was no breach of Policy ED 12.
112. In the light of these conclusions, the applicants’ arguments based upon the failure of the Board to apply the cited provisions of the development plan to the entire Development at the site in assessing the appeal must be rejected. The applicants have not established that the Board failed to have regard to those policies, objectives and guidelines when assessing the modifications to the Development for which planning permission was sought in the 2014 Application.
113. The Board submitted that in any event the obligation “to have regard” to something is not an obligation to follow that thing. It relied upon the decisions in Evans v. An Bord Pleanála (Unreported, High Court, Kearns J., 7th November, 2003) to the effect that the non-recitation of guidelines in the reasons of the decision of the Board does not mean that proper consideration was not giving to the guidelines. The Board submits that it was clear that the relevant policy material was before the Board and it was dealt with in submissions and in the Inspector’s Report. In the absence of disagreement between the Inspector and the Board and, in particular, where the Board followed the Inspector’s recommendation, the Court is entitled to read the Inspector’s Report and the Board’s Decision together. In this regard it relies upon the decisions in Maxol Ltd. v. An Bord Pleanála [2011] IEHC 537 and Buckley & Anor v. An Bord Pleanála [2015] IEHC 590.
114. I accept these submissions of the Board. There is ample evidence that the Board “had regard” to the policies and guidelines relied upon by the applicants when it assessed the revisions, modifications and amendments to the Development in respect of which permission was sought in the 2014 Application. Accordingly, it did not act incorrectly or unlawfully in this regard.
Environmental Impact Assessment
115. The applicants argue that an EIA was required in this case and that as no such assessment was conducted, the decision is void. They refer to s. 172(1) of the 2000 Act , which provides (insofar as relevant) as follows:-
“[a]n environmental impact assessment shall be carried out by the planning authority or the Board, as the case may be, in respect of an application for consent for proposed development were either-
(a) the proposed development would be of a class specified in-
(i) Part 1 of Schedule 5 of the Planning and Development Regulations 2001, and either-
(I) such development would exceed any relevant quantity, area of other limit specified in that Part, or
(II) no quantity, area or other limit is specified in that Part in respect of the development concerned,
or
(b) (i) the proposed development would be of a class specified in Part 2 of Schedule 5 of the Planning and Development Regulations 2001 but does not exceed the relevant quantity, area or other limit specified in that Part, and
(ii) the planning Authority or the Board, as the case may be, determines that the proposed development would be likely to have significant effects on the environment.”
116. The applicants say that the legislation thus envisages that an EIA will be carried out in circumstances either where the project comes within a particular category or class of development and meets the threshold prescribed, or where it comes within a particular category or class of development and is sub-threshold but is nevertheless determined to be likely to have significant effects on the environment. In this latter case, a screening process is required.
117. The applicants say that Classes 10, 13 and 14 of Part 2 of Schedule 5 of the Regulations are relevant in the present case. The relevant Classes provide as follows:-
“Class 10 Infrastructure Projects
10(b)(iii) Construction of a shopping centre with a gross floor exceeding 10,000 square metres…
Class 13 Changes, extensions, development and testing
(a) Any change or extension of development already authorised, executed or in the process of being executed (not being a change referred to in Part 1) which would:-
(i) result in the development being of a class listed in Part 1 or paragraphs 1 to 12 of Part 2 of this Schedule, and
(ii) result in an increase in the size greater than –
• 25 per cent, or
• An amount equal to 50 per cent of the appropriate threshold,
whichever is the greater.
(b) Projects in Part 1 undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than 2 years.
(In this paragraph, an increase in size is calculated in terms of the unit of measure of the appropriate threshold).
(c) Any change or extension of development being of a class listed in Part 1 or paragraphs 1 to 12 of Part 2 of this Schedule, which would result in the demolition of structures, the demolition of which had not previously been authorised, and where such demolition would be likely to have significant effects on the environment, having regard to the criteria set out under Schedule 7.
Class 14 Works of Demolition
Works of demolition carried out in order to facilitate a project listed in Part 1 of Part 2 of this Schedule where such works would be likely to have significant effects on the environment, having regard to the criteria set out in Schedule 7”.
118. The applicants argue that the proposed Development fell within Class 10(b)(iii) and accordingly an EIA was required. Alternatively, they contend that the proposed development came within Class 13(c) and/or Class 14 and accordingly a screening assessment was required to be carried out by the Board and a reasoned screening determination issued. This was not done and therefore the decision to grant permission is void.
Class 10(b)(iii)
119. The applicants submit that the Development in the present case is for a shopping centre with a gross floor area of 63,712 m2. Thus this exceeds the threshold prescribed in Class 10(b)(iii) of 10,000 m2. They say that therefore the carrying out of an EIA was mandatory. They say that the threshold must be applied to the quantum of development actually applied for. It has to be contrasted with the situation where a developer of a existing retail development applies to build an extension to that development. In such a scenario, the red line of the planning application will be confined to the extended area; it would not include the existing development. The question of whether an EIA would be required would be determined by examining, first, whether the extended area exceeded the thresholds prescribed under Class 13(a). If it did, an EIA was requested. If it did not then, secondly, carrying out a screening exercise to determine whether the development – including its cumulative impact with existing development – would be likely to have a significant effect on the environment. But that is not what was applied for in this case.
120. In reply to this argument, the Board submitted that Class 10(b)(iii) requires the provision of an EIS for the construction of a shopping centre with a gross floor space exceeding 10,000 m2. The 2014 Application was for revisions of, and amendments to, existing grants of planning permission and involved an overall reduction in the size of the Development. They quoted the Inspector’s Report at section 11.2 as follows:-
“[a]ccordingly, given that the subject proposal is limited to the amendment of the permitted development and is not being assessed from first principles, in my opinion, the submission of an EIS pursuant to Class 10(b)(iii) is not mandatory in this instance”.
They submit that this was entirely reasonable a fortiori where the extant planning permissions and the underlying permitted development had previously undergone a full EIA. It was argued that clearly the Board agreed with the Inspector as no EIS was in fact required. They also stated that it is significant that the applicants have not pointed to one single substantive point which they have a concern over regarding environmental impact at all. This was a point made by Haughton J. in An Taisce v. An Bord Pleanála [2015] IEHC 604 at para. 79.
121. I accept that the Inspector and the Board acted correctly in relation to this matter. The issue is whether an EIA was mandated by the provisions of the Regulations because the application fell within Class 10 of the Regulations. Class 10 refers to infrastructure projects and in particular at 10(b)(iii) the construction of a shopping centre with a gross floor exceeding 10,000 m2. The applicants accept that an application of less than 10,000 m2 to extend a shopping centre of more than 10,000 m2 would not be captured by this Class as the application would not be for the construction of a shopping centre with a gross floor exceeding 10,000 m2. They say in this case the planning application shows that the gross floor space of proposed works is 63,712 m2 and that the application site included the entire site. That being so, on its face the application clearly falls within Class 10 of the Regulations and an EIA accordingly was mandatory.
122. I do not accept that this is a correct characterisation of the 2014 Application or a correct application of the Regulations to the planning application. I accept that this is an application to amend the existing planning permissions. It involves the reconfiguration of the internal layout of the complex and revised proposals for the overall internal road layout, parking layout and service arrangements. It also revises the external elevations and signage associated with the Development and the hard and soft landscaping. Thus the changes are to the entire area of the site but the application is not for planning permission to develop a shopping centre of more than 10,000 m2. It is to make alterations to a shopping centre of more than 70,000 m2 in respect of which an EIA has already been conducted. In my opinion therefore the application simply does not fall in Class 10 and to simplistically state that it does because the proposed floor space is set out as 63,712 m2 is to ignore the essence of the application for planning permission and to focus on the form.
123. The applicants’ argument is predicated on the submission that every application for planning permission, where what is sought is permission merely to modify existing grants of planning permission and which do not fall within the strict limits of ss. 146A-146D of the 2000 Act must be assessed from first principles and subject on each and every occasion either to an EIA or to an assessment as to whether or not an EIA is required as appropriate. As I have rejected this premise earlier in my judgment, it follows that I reject this argument based upon the premise. Furthermore, it is inconsistent with Class 13 of the Regulations. Class 13 applies, inter alia, to changes and extensions to development in the process of being executed. The 2014 Application was an application to change a development in the process of being executed. It is common case that it did not satisfy the requirements of Class 13(a) and therefore, it seems to me, that the 2014 Application did not require to be further assessed for EIA.
124. This is entirely sensible and consistent with the overall objectives of the EIA Directive which is to ensure that development projects which are likely to have significant effects on the environment are subject to EIA prior to any decision being made to grant development consent. The Directive is transposed into Irish law by the 2000 Act and the Regulations. The 2014 Application did not require to be assessed for EIA under Class 13(a) or Class 10(b)(iii). In the circumstances, I hold that an EIA was not mandatory under the provisions of s. 172 of the 2000 Act in this case.
Class 13(c) and Class 14
125. The application involved the demolition and removal of 6,465 m2 of a partially complete decked car park structure. That being so, the parties were agreed that the provisions of Class 13(c) and Class 14 applied to the application. The applicants argued that the works of demolition should have been screened by the Board in order to determine whether they were likely to have a significant effect on the environment. Further, they say the screening determination should have been recorded in writing by the Board. They say that the Board failed in both respects. The applicants relied upon on Article 109 of the Regulations which provides (where relevant) as follows:-
“(1) Where an appeal received by the Board relates to a planning
application for a class of development specified in Schedule 5 which exceeds a quantity, area or other limit specified in that Schedule for that class of development, and an EIS was not submitted to the planning authority in respect of the planning application, the Board shall require the applicant to submit an EIS to the Board.
(2) Where an appeal relating to a planning application for sub-threshold
development is not accompanied by an EIS, and the likelihood of significant effects on the environment cannot be excluded by the Board, the Board shall make a determination as to whether the development would be likely to have significant effects on the environment and where it determines that the development would be likely to have such significant effects it shall, by notice in writing, require the applicant to submit an EIS and to comply with
the requirements of article 112…
(4) The Board shall, in determining under this article whether a proposed
development would or would not be likely to have significant effects on
the environment, have regard to the criteria set out in Schedule 7 and the determination of the Board, including the main reasons and considerations on which the determination is based, shall be placed and kept with the documents relating to the planning application.”.
126. The applicants contend that the practical effect of these provisions – and in particular the obligation to place the determination with the documents relating to the planning application – is that the Board was required to make a screening determination at an early stage of the appeal process and the outcome of the determination as to whether an EIA was required ought to have been recorded in the statutory planning register. They submit that there is no reference in either the Board’s Decision or the Board’s Direction to a screening determination having been made and there is no record of the main reasons and considerations for the determination. They submit that in order to be lawful, a screening determination would have to disclose the reasons for deciding (1) that the development in general was not likely to have a significant effect on the environment, and (2) that the demolition works in particular were not likely to have a significant effect on the environment. There is no such determination in this case according to the applicants.
127. They referred to section 11.2.2 of the Inspector’s Report where he dealt with the impact of demolition works as follows:-
“With regard to that aspect of the proposed development which involves the demolition / removal of 6,465m2 of a partially complete decked car park structure, it is my opinion that the said works would be unlikely to have significant effects on the environment having regard to the criteria set out under Schedule 7 of Regulations thus do not necessitate the submission of an EIS in reference to Class 13(c) of Part 2 of Schedule 5 of the Regulations.”
They say that this merely represents a conclusion and that the rationale for his opinion is not set out.
128. More importantly they say that the Inspector in his Report did not address the question whether the development in general is likely to have significant effects on the environment. They say that the Board is obliged to set out a proper statement of the reasons and main considerations in order to allow for an effective right of judicial review. They refer to the decision of the Court of Justice of the European Union in C-75/08 The Queen, on the application of Christopher Mellor v. Secretary of State for Communities and Local Government. The CJEU stated at paras. 58 and 59:-
“[i]t does not follow, however, from Directive 85/337, or from case-law of the Court, in particular, from that judgment, that a determination not to subject a project to an EIA must, itself, contain the reasons for which the competent authority determined that an assessment was unnecessary…
…the competent National Authority is under a duty to inform [interested parties] of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request”.
129. In reply, the Board points out that the onus is on the applicants to prove that either an EIA was required or that a screening process was required and was not in fact carried out. They say that the applicants fail on each account. The Board submits that the demolition works in the proposed planning permission were fully described in the submissions and observations before the Board and indeed, in the application documents themselves. They say that consequently there was sufficient information before the Board to determine that these were not likely to have significant effects on the environment and thus no EIS was needed under Class 13(c) or under Class 14.
130. In section 11.2 of his Report the Inspector clearly set out his reasoning why an EIS was not required (and by extension why the Board was not required to carry out an EIA). As discussed above, he expressly considered the question of Class 10(b)(iii) of Part 2 of Schedule 5 of the Regulations. On the basis that the approved development had already been subjected to an EIA he noted that the proposed amendments did not involve a change or extension to the partially constructed/approved development which would increase the size by more than 25% or an amount equal to 50% of the relevant threshold (which ever was the greater) in reference to Class 13(a) of Part 2 of Schedule 5 of the Regulations and thus would not necessitate the preparation of an EIS. With regard to the aspect of the proposed development which involved demolition works, he expressed his opinion that the works would be unlikely to have significant effects on the environment having regard to the criteria set out in Schedule 7 of the Regulations and therefore did not necessitate the submission of an EIS in relation to this Class. At section 11.2.3 he stated:-
“[a]ccordingly, having regard to the site location, the context of the proposed development site, and the nature and scale of the works proposed, in my opinion, the subject proposal does not involve a class of development prescribed for the purposes of Section 176 of the Planning and Development Act, 2000, as amended, as set out in Part 1 & 2 of Schedule 5 of the Planning and Development Regulations, 2001, as amended, and, therefore, it does not necessitate the preparation of an Environmental Impact Statement.”
131. It was submitted that the applicants were incorrect in their argument that the Board had made no screening decision. In this case the Inspector clearly set out his reasoning why an EIS was not required (and by extension why the Board was not required to carry out an EIA). The Board clearly adopted that reasoning. The Board’s Direction recited that it adopted the Inspector’s recommendation. Thus there was a proper “screening” exercise carried out and the reasons for the decision are clearly set out as to why EIS was deemed not necessary (and thus no EIA was required).
132. The Board submitted that Article 109 of the Regulations does not require a separate independent written screening determination. In this regard they refer to the fact that in Aherne v. An Bord Pleanála [2015] IEHC 606 and Ratheniska v. An Bord Pleanála [2015] IEHC 18 the High Court twice rejected the argument that s. 172 of the 2000 Act required a separate EIA document to the Board decision. It was contended in Aherne and Ratheniska that the obligation to make available the evaluation of the direct and indirect effects of the proposed development required an independent published decision by the Board. In both cases this was rejected. It was held that the Board decision itself was the evaluation.
133. The Board submitted that if the High Court did not accept that s. 172(1) required the creation of an independent document to evidence the evaluation comprised within an EIA, then logically there is no basis for assuming that the requirement under Article 109 to place a screening determination on file requires the creation of an independent document to evidence the screening process. In essence, just as with the substantive EIA, the “determination” can be encompassed within the Board decision.
134. The Board also noted that in both of the cases the High Court followed the long established approach of considering the inspector’s report with the Board’s decision to assess the reasoning behind the decision in question (in those cases on EIA). In this case, they submit that the Inspector’s Report and the Board’s Decision make it clear that a screening process was carried out, the Board reached a decision in respect of the screening process and a written record of the decision exist in the Board’s Decision, Direction and the Inspector’s Report.
135. I accept the submissions on behalf of the Board in relation to these points. It is clear that the question as to whether or not an EIA was required was raised in the papers before the Board. It was thoroughly addressed in the Inspector’s Report. The Board adopted the Inspector’s Report. It is a well established that a court may impute the reasons set out in an inspector’s report to the Board where the Board accepts the recommendations of the Inspector and does not differ from the inspector’s report in reaching its decision. In those circumstances, I am satisfied that the Board carried out a proper screening as required by the provisions of Class 13(c) and Class 14 in this case, reaching the decision on the basis of its expertise and within its jurisdiction that no EIS (and thus no EIA) was required and a decision to that effect was available to the public.
136. Insofar as the applicants complain that this decision did not exist separately and was not readily available to them prior to the decision of the Board, it is to be noted in the case of Mellor that the CJEU accepted that the requirement to inform interested parties of the reason for the refusal to subject a project to an EIA may be set out either in the decision itself or in a subsequent communication made at their request. There is no indication that the applicants sought the reasons for the determination from the Board subsequent to its decision to grant planning permission in this case. I am satisfied, on the authority of Mellor, that there was no failure by the Board to give reasons for its determination that an EIA was not required and that, in accordance with the Directive and the Regulations, the determination was placed and kept with the documents relating to the planning application as it is to be found in the Inspector’s Report and the Direction and Decision of the Board.
137. The Board did not err in law in failing to require that the 2014 Application be subject to an EIA. The Board, through its Inspector, carried out a screening exercise to ascertain whether or not the application might have significant environmental impacts and thus whether an EIA ought to be conducted. It reached a decision that the proposed development did not necessitate the preparation of an EIA. The grounds for the decision were set out in the Inspector’s Report and the Board’s Direction and Decision. These documents are kept with the planning file. There was, therefore, compliance with the requirements of the Regulations, the 2000 Act and the Directive and the applicants’ arguments in this regard are rejected.
Case C-416/10 Križan & Ors v. Slovenská inšpekcia životného prostredia
138. The applicant submitted that in the provisions of s. 172 of the 2000 Act are clear: where, as in the present case, the development is of a class prescribed under Part 2 and exceeds the relevant threshold, then an EIA is mandatory. There is nothing in the legislation nor in the regulations which indicates that a different test is to apply merely because an EIA may have been carried out years earlier in the context of a planning permission which is now withering. They submit that if this were permitted under the Irish planning legislation then the legislation and Regulations might be inconsistent with the EIA Directive. They rely upon the Opinion of the Advocate General in C-416/10 Križan & Ors v. Slovenská Inšpekcia Životného Prostredia (“Križan”). Advocate General Kokott stated as follows:-
“126. The EIA Directive does not expressly govern the question whether the validity of an assessment which is adequate in terms of its content can be prolonged. Nevertheless, the objective of the environmental impact assessment which is laid down in Article 2(1) of the EIA Directive must be determinative. Pursuant to that provision, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an environmental assessment. Such an assessment cannot be restricted to the effects which would have been caused if the project had been proceeded with at some time in the past. On the contrary, it must include all the effects which may actually be likely at the time of the consent…
128. If, in the meantime, environmental conditions or the project have changed so that other significant effects on the environment are possible, the procedure for the environmental impact assessment must be supplemented or even be carried out completely again in a repeat EIA procedure. Consequently, it may become necessary to examine whether the environmental impact assessment still correctly represents the possible significant effects of the project on the environment at the time of consent; therefore, in other words, an updating assessment must be carried out with the objective of determining whether a supplementary environmental impact assessment is necessary…
131. Furthermore, since the environmental impact assessment the town of Pezinok has changed its development plans. Consequently, the possibility cannot, in particular, be ruled out that the environmental effects of the landfill project will need to be re-evaluated with regard to changes to the use of neighbouring areas which have not yet been taken into account. Such uses could be more sensitive as regards the effects of a landfill or could intensify the cumulative effects compared to the original assessment.
132. However, intensified cumulative effects might also result from the fact that the existing Pezinok landfill site was not closed in 2001, as had been assumed in the environmental impact assessment, but had continued in use until at least 31 October 2007, possibly even for longer. As a consequence of this, the previous impact upon the area could have increased.”
139. Relying upon this Opinion, the applicants argue that a change in the development plan is a factor which may trigger the requirement for a new EIA . It follows that a screening as to whether a new EIA is or is not required must be carried out where a new development plan has been adopted between the date of the EIA and the date of the application for permission relating to the project previously the subject of the EIA to determine whether a new EIA is required in order to comply with the requirements of Article 2 of the EIA Directive.
140. The Board noted that Križan concerned a refusal to disclose to the public the location of a potential landfill site on the basis of commercial confidentiality. The location had been determined in an “urban planning decision” of the relevant urban authority for Pezinok, Slovenia but this was not made available to the public in the context of proceedings concerning the subsequent licensing of that landfill facility. The Advocate General raised a point that Pezinok had changed its development plan since the last EIA was carried out on the landfill as part of the discussion as to whether the EIA Directive required access to this information. The Board referred to paras. 131-132 of her Opinion, cited above.
141. The Board submitted that this Opinion did not mean that every time a development plan changed it will be a necessary to reassess existing or permitted developments for EIA. Furthermore, the Board actually did consider whether a further EIS was required and expressly decided that it was not. They submitted that the simple fact of a change in development plan cannot of itself raise the possibility of likely significant effects on the environment and therefore the requirement for a new EIA.
142. The Developer submitted that the Opinion of the Advocate General is not binding on the Court. It referred to the judgment of Haughton J. in People Over Wind v. An Board Pleanála & Ors [2015] IEHC 393 at para. 25 where he stated that opinions of an Advocate General “while weighty do not have the status or force of law”. The Developer submitted that it was clear that the case related to the requirement to conduct an EIA in circumstances where the development consent had expired, and the decision was made to extend the duration of the consent beyond its initial expiry date. The CJEU summarised the issue in Križan:- “can it be said that a decision under Directive [85-337], once issued is valid indefinitely?” They point out that the impugned decision relates to an amendment to an existing, valid development consent and they say that no new EIA was required.
143. The first point to be made is that there is no issue in this case regarding the transposition of the EIA Directive into Irish law. The issue was not raised in the Special Summons and no leave to challenge the transposition of the Directive into Irish law was granted. At para. (E)12 of the Statement of Grounds the applicants plead:-
“An Bord Pleanála failed to have any, or any adequate, regard to the Opinion of the Advocate General in Case C-416/10 Križan ECLI:EU:C:2012:218, a case that was included in the written observations dated 14 October 2014 on behalf of Second Applicant.”
This is the case which falls to be considered.
144. The Opinion concerns changes to environmental conditions or the subject project “so that other significant effects on the environment are possible”. The applicants have not identified any significant effects on the environment which they say are possible arising out of the 2014 Application. They refer simply to the fact that the development plan and ministerial guidelines and policies have changed. I accept the submissions of the Board that the Opinion does not mean that every time a development plan changes there will be a need to reassess existing or permitted developments for EIA and I also accept that the simple fact of a change in a development plan cannot of itself raise the possibility of likely significant effects on the environment.
145. As a matter of fact, the Inspector did asses whether or not a new EIS (and EIA) was required. This is dealt with in section 11.2 of his Report and his conclusion at section 11.2.3 (which I have quoted at para. 130 above). The Board accepted the Inspector’s Report and therefore may be deemed to have accepted his assessment and reasoning in relation to whether or not an EIA was required. As such, I am satisfied therefore, that there was in fact a screening exercise carried out in respect of the possible need to conduct a new EIA in relation to the 2014 Application and it concluded that it was not required. In those circumstances, I am satisfied that even if the Board was obliged to comply with the Opinion of the Advocate General in Križan there has being no failure on its part in assessing the 2014 Application. In any event it was a decision it was entitled to make within its jurisdiction. It is not for the Court to question or query the quality of the EIA that was conducted or to assess whether a new EIA was required on the basis of possible substantial effects on the environment.
Conclusions
146. For the reasons set out in this judgment, I refuse the relief sought in paras. 1-6 of the Statement of Grounds. The parties agreed that the issues in relations to costs and in particular whether or not the provisions of s. 50B of the 2000 Act were to be heard and determined subsequent to the judgment in this case. I therefore will list this aspect of the application for hearing at a later date.
____________________________
1 As it then was. It is now described as Limerick City and County Council pursuant to the Local Government Reform Act 2014.
2 Separate provisions apply in respect of the granting of a temporary permission under s. 34(4)(n) of the 2000 Act.
3 Policies ED11, ED12,ED 23, ED 16, ED 17, ED 11, ED 12, ED 13.
4 This section was subsequentially amended on the 1st June, 2014, by the Local Government Reform Act 2014 s. 5(7).
Carman S Hall Community Interest Group v Dublin City Council
[2017] IEHC 544
JUDGMENT of Mr. Justice Binchy delivered on the 11th day of October, 2017
1. By these proceedings the applicants seek an Order of certiorari by way of an application for judicial review quashing a decision and Order of the Deputy Chief Executive of the respondent dated 28th October, 2016 (the “Order”). The Order purports to authorise a change of use and the refurbishment of inter alia, a premises formerly used as a Parish Centre and known as St. Nicholas of Myra and situated at Carman’s Hall, Dublin 8 (“the Premises”), and in the ownership of the Dublin Archdiocese, in order to provide accommodation for persons experiencing homelessness. It was made by Mr. Jim Keogan, then Assistant Chief Executive of the respondent, and acting pursuant to powers delegated to him by the Chief Executive, Mr. Owen Keegan and is in the following terms:-
“As the officer with the delegated responsibility for planning and development in Dublin City Council’s administrative area I endorse the recommendation of the Senior Executive Officer above requiring that a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street, be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is an exempted development having regard to the provision of the Planning and Development Act 2000, s. 179(6)(b) which states inter alia development by a local authority is exempt if the development “is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action”.”
2. It is important to stress that these proceedings are concerned only with the Premises, and not with the other premises at Ellis Quay and Little Britain Street/Green Street referred to in the Order.
3. As is apparent from the Order, it was based upon the recommendation of a Senior Executive Officer in the housing and residential department of the respondent, dated 28th October, 2016. That officer is Ms. Máire Igoe, and in her recommendation, Ms. Igoe states that the respondent is unable:-
“To meet the needs of a growing cohort of vulnerable adults and families presenting to Dublin City Council’s Homeless Services due to the unavailability of suitable accommodation in the Dublin region. The current high levels of presentations of homeless services as well as the growing number of individuals and families being encountered on the streets indicates that this situation is going to get worse during the winter of 2016 and beyond. In addition to adults experiencing homelessness the situation for families is precarious as the numbers of families in need of emergency accommodation is outstripping the available contracted provision in place.
The rough sleeper count in Spring 2016 showed at least 102 people sleeping rough in the Dublin region. In July 2016 alone 97 new families presented as homeless bringing the total number of families in emergency accommodation to 993 with 2,020 children. All the Dublin local authorities are experiencing a similar crisis in their administrative areas.
Due to the large number of families requiring emergency accommodation which had resulted from a range of factors including the loss of private rental accommodation and family breakdown the Dublin Regional Homeless Executive (on behalf of the four Dublin LA’s) has had no choice but to use commercial hotels settings as a form of temporary shelter as no alternative housing options have been available. The use of commercial hotels in this way is an unstable and unsuitable form of accommodation for vulnerable families.
The availability of hotel rooms for this use is now at saturation point particularly due to the upturn in the Dublin tourism sector. This is a critical situation which requires an urgent emergency response in order to provide the accommodation necessary to prevent fatalities and/or serious harm to adults and children at serious risk of rough sleeping in Dublin during 2016/2017.
Dublin City Council’s Housing and Residential Department are seeking approval to take immediate humanitarian action to open the homelessness facilities as set out below in order to ensure beds are available for all persons who are at risk of rough sleeping.
A proposal to change the use of the existing buildings outlined below on a temporary basis has been put forward as part of the emergency response. The provision of these emergency accommodation units is temporary in nature pending a more sustainable long term option being provided for this vulnerable group through the provision of supported long term accommodation or permanent housing options (social housing/private rented (HAP)).”
4. Ms. Igoe then concludes with a recommendation as follows:-
“Given the current lack of suitable accommodation to cater for persons experiencing homelessness in the Dublin area as outlined above and given that the situation is considered by both the executive and elected members of Dublin City Council to be of a level that is considered an emergency with immediate action required, I recommend that in order to alleviate this unacceptable situation a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is exempted development having regard to the provisions of the Planning and Development Act, 2000 s. 179(6)(b) which states inter alia development by a local authority is exempt if the development is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action.”
Background
5. In the statement of grounds, the first applicant is described as an association comprising local residents of the Liberties area of Dublin 8, being persons directly affected by and concerned with the proposed development of the Premises. The second applicant is described as a Residents Association comprising exclusively residents of Michael Mallin House, Vicar Street and Carman’s Hall, the combined buildings of which are home to 164 residents including 46 children under the age of 16 years. The third applicant is described as a youth and community worker in the employment of the South West Inner City Network under the aegis of the Department of Social Protection, and who works in the immediate local area of the Premises. In this role the third applicant was formerly based at St. Nicholas’s of Myra Parish Community Centre, Carman’s Hall, Dublin 8, i.e. the Premises, until 8th November, 2013. She was awarded the 2016 Dublin City Council Good Citizen Award for her work in the children and youth category.
6. Issues have been raised by the respondent in the proceedings in relation to the legal capacity of the first and second named applicants. I will address those issues in due course, but suffice to say at this juncture that since no issue arises in relation to the capacity of the third named applicant, there can be no obstacle to the bringing of these proceedings by her on these grounds.
7. The proceedings are grounded upon three affidavits: an affidavit of Ruth Campbell sworn 4th December, 2016 on behalf of the second applicant; an affidavit of the third named applicant sworn on the same date; and an affidavit of a Raymond O’Malley, civil engineer and town planner dated 30th November, 2016. Ms. Campbell describes herself as a community volunteer and chairperson of the Michael Mallin House Residents Association. She says that Michael Mallin House is a local authority flat complex made up of two buildings, one of which is within one hundred metres of the Premises and the other of which is just another few metres away. She says that she has lived in Michael Mallin House for twenty-five years with her family.
8. Ms. Campbell states that the Premises was, for a period of twenty-five years until it closed in November 2013, used as a Community Centre. She says that on any given day as many as 450 adults and children made use of the Premises for a wide range of purposes, including a breakfast club to feed disadvantaged children, a homework club, the provision of meals for senior citizens, evening classes, adult training on drug awareness, community development, the local community policing forum and other general uses by associations and organisations. The Premises was closed owing to accessibility issues and because it was not compliant with fire regulations. Ever since then, the residents in the area have campaigned to have the Premises reopened and have sought funding from the relevant authorities to attempt to bring the Premises up to the applicable regulatory standards.
9. Ms. Campbell describes in some detail the importance of the Premises when it was open for use as a Community Centre, on account of the lack of facilities in the Liberties, for children in particular. Since its closure, community activities have been severely restricted because there is no other community facility in the area. In her grounding affidavit, Ms. O’Connor describes the closure of the Premises in 2013 as being a “devastating blow” for the local community because people have nowhere local to come together to run events, as in the past. Both Ms. Campbell and Ms. O’Connor aver that they and others had been seeking assistance from local (elected) representatives in Dublin City Council in order to secure the necessary resources to have the Premises reopened for the benefit of the community and that as recently as October, 2016, Councillor Críona Ní Dhálaigh was in correspondence with both the Archdiocese and the Parish Priest, Fr. Martin Dolan in this regard. Ms Campbell refers to an email to Cllr. Ní Dhálaigh of 13th October, 2016 in which Fr. Dolan stated that “the Parish has been working very hard for the last almost three years to get the Parish Centre open again. In the near future I will be in touch with you again to discuss the progress.”
10. Ms. O’Connor, the third named applicant, avers in her grounding affidavit that on 24th October, 2016 she was passing the Premises when she noticed a large team of contractors working at the building. Over the course of the day, she says, rumours circulated that the Premises was to be converted for use as a hostel with 65 bed spaces for men. She contacted Dublin City councillors, but they had no knowledge of the purpose of the works. Following enquiries however, it was established that the respondent had indeed taken the decision to convert the Premises for use as accommodation for homeless persons. It transpired that the respondent had made contact with the parish authorities in May, 2016 to explore the possible temporary use of the Premises as a homeless shelter. The respondent made a presentation to the parish authorities in May 2016, presenting its model for the provision of services to the homeless, contained in a document entitled Pathway to Home ,and explaining how it (the respondent) operates to provide emergency accommodation and support services for homeless persons and how quality standards and good neighbourhood relations are a prerequisite for the commissioning and establishment of new facilities. The respondent’s proposals were received positively by the parish authorities, and the respondent prepared a draft lease which issued to the parish authorities on 11th August, 2016. Following discussions, agreement in principle was reached in late August, 2016. All of this information was given in a reply dated 30th November, 2016 given by the respondent (through a Mr. Daithi Downey, Deputy Director and Head of Policy and Services Delivery, Dublin Regional Homeless Executive (“DRHE”) to a query put by Councillor Ní Dhálaigh. The DRHE is a shared service operating under the aegis of the respondent, as lead statutory authority in the Dublin region, in respect of the co-ordination of responses to homelessness. In this reply, Mr. Downey (who also swore affidavits in these proceedings) states that the formal lease itself was signed on 28th October, 2016. However, in his second affidavit of 14th December, 2016 Mr. Downey says that the lease was signed on 28th September, 2016. No copy of the lease itself was exhibited by the respondent in the proceedings.
11. The information given to Councillor Ní Dhálaigh on 30th November, 2016 may be contrasted with a response to a motion of Councillor Ni Dhálaigh which she tabled for a meeting of the elected representatives of the respondent on 3rd October, 2016. At that time Councillor Ní Dhálaigh was asking the respondent to facilitate a meeting with the Dublin Archdiocese with a view to trying to progress the reopening of the Premises as a Community Centre. In his reply, Mr. Brendan Kenny, Assistant Chief Executive of the respondent stated that:-
“Officials did meet with the Dublin Diocese on a number of occasions following the closure of this premises a couple of years ago, with a view to the possibility of the Diocese handing it over to Dublin City Council for general community use. Agreement to such a handover was not achieved and this (vacant) premises remains in the ownership of the Dublin Diocese”.
12. On 11th November 2016, Ms. O’Connor wrote to the Chief Executive of the respondent. This is a lengthy letter in which Ms. O’Connor explains in some detail the effect of the closure of the Premises as a Community Centre, and also sets out her concerns in relation to the provision of accommodation for homeless persons at the Premises. While in this letter Ms. O’Connor expresses concerns to which she also deposes in her affidavits in these proceedings, nonetheless it is of some assistance to identify those concerns as expressed in this letter, at this juncture:-
“The proposed hostel is in the very same building as the community crèche which cares for over 100 infants from the local area on a daily basis. The crèche is there 20 years and has only just had its lease renewed for another five years, in October 2016. The residents of the immediate area depend on the crèche and are very concerned for their children. The crèche used to share with the Community Centre, until the Church forced it to shut down in November 2013. We have been campaigning ever since to have the Centre reopened. The hostel will now share the ground floor with the crèche and the hostel windows directly overlook the children’s play yard from the first floor. Both the children and the hostel users will be coming and going from the same building at the same time in the mornings and evenings. They have different access doors but it is still the same building. It is well known that many inner-city hostel users have drug and alcohol addiction problems. It is clear that many of the young children will pass the hostel users every single day. From experience, we expect anti-social groups congregating in the immediate area, the surrounding streets and laneways engaging in drug and alcohol abuse. This will bring safety concerns for residents and create a danger to children from used needles, drug paraphernalia and broken alcohol bottles. We cannot understand why the Council is seeking to operate a hostel for the homeless in the very same building as a crèche, and also just feet from the front doors of long established residences of houses and flats in Carmel’s Hall and of Michael Mallin House.
We cannot understand why the Council is concentrating all of its homelessness services in the same small area in and around the Liberties. There are already over 666 homeless shelter beds within a short distance of this location but there are very few places in other areas of Dublin City. We cannot understand why the Council has closed the nearby Brú Aimsir hostel on Thomas Street and spent money opening another one in the St. Nicholas of Myra Centre. The Council is creating its own problem by closing beds in one location and using it to justify opening yet another hostel.”
Ms. O’Connor then continues in this letter to complain about the failure of the Council to consult with the local community about the development or to provide any information in relation to the same.
13. The Chief Executive replied to Ms. O’Connor’s letter, by letter of 14th November, 2016. Since this letter sets out the respondent’s position as well as any other document in these proceedings, it is worth quoting from it extensively. In relation to the concerns raised by Ms. O’Connor he says the following:-
• “There is an urgent need to provide emergency accommodation for the 150 or so individuals, who are currently sleeping rough on the city’s streets, in advance of the winter period.
• In addition to the need to cater for these individuals the Brú Aimsir temporary hostel, which was opened in October 2015, has to close early in 2017. This building is owned by the Digital Hub Development Agency and was only leased to the Council for the 2015/2016 winter period. The lease was extended to allow Brú Aimsir to continue in use beyond April 2016 but the City Council must vacate the building early in 2017 to facilitate planned redevelopment of the site.
• A total of three new temporary hostels are being developed to provide additional emergency accommodation and to allow for the closure of Brú Aimsir. Their [sic] are located at Carmel’s Hall, at the former Bargain Town premises at 7-9 Ellis Quay, Dublin 7 and at a former warehouse premises at 13-17 Little Britain Street, Dublin 7. The existing users of Brú Aimsir will probably be dispersed between the three new facilities.
• The issue of the concentration of emergency accommodation in the Francis Street area of the city should be seen in the context of the planned closure of Brú Aimsir early in 2017.
• Given the emergency situation that exists in relation to homeless persons sleeping rough in the city and the urgent need to provide additional accommodation it was considered appropriate and necessary to use the emergency planning powers of the Chief Executive.
• I accept that the failure to consult with the local community in relation to the proposed development at Carman’s Hall is a matter of considerable annoyance and indeed anger to some members of the community which is both understandable and unfortunate. At the same time, it would have been disingenuous of the Council to engage in local consultation in relation to the Carman’s Hall development when the reality was that once the lease was signed the City Council felt it had no option but to proceed with the proposed development given the scale of the homeless emergency it is seeking to deal with.
• I do not regard the Carman’s Hall premises as an unsuitable location for emergency homeless hostel. I accept however that the management regime in place must have due regard to the legitimate concerns of the local community. The City Council is prepared to facilitate a meeting/meetings between the hostel operator and the local community in an effort to address matters of concern to the local community.
• The facility of Carman’s Hall is being developed as a temporary homeless hostel. With the expected recovery in the housing market the Council is confident that it will be able to source suitable units of accommodation for homeless individuals, primarily in the private rented sector which with appropriate supports will provide suitable and sustainable accommodation for homeless individuals and allow the Council to close temporary hostels. At this stage however it is impossible to say for certain when this will happen. However, I would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Carman’s Hall facility beyond the 2017/2018 winter period.
• While Carman’s Hall is not in the ownership of the City Council, we are prepared to engage with the local community and the Archdiocese of Dublin in relation to the use of the facility once its use as a temporary homeless hostel ceases.
• Finally, the Council is not prepared to defer the opening of the Carman’s Hall facility. However, it is prepared to engage with the local community in relation to its day to day management in advance of the opening and to provide whatever additional information you require.”
14. Following upon receipt of the letter from the Chief Executive of 14th November, 2016, the applicants brought these proceedings. By order of 5th December, 2016 the applicants were given leave to apply by way of judicial review for the relief set forth at paragraph (d) of the statement of grounds, on the grounds set forth in paragraph (e) thereof. On the same date, Humphreys J. placed a stay on the Order until 24th January, 2017. However, upon application of the respondent, the stay was vacated by Noonan J. on 16th December, 2016 following upon which the Premises was immediately put into use for the provision of accommodation of homeless persons. The Premises accommodates 65 persons.
The Reliefs Sought
15. The applicants seek the following reliefs:-
(1) An Order by way of certiorari quashing the Order insofar as it relates to the Premises only;
(2) A declaration that the Order is null and void, being ultra vires the powers of the respondent, by reason of the respondent’s failure to comply inter alia with s. 178(2) of the Planning and Development Acts 2000-2016 and Part VIII of the Planning and Development Regulations 2001, as amended; and
(3) A declaration that authorisation of the proposed change of use and refurbishment works of the Premises comprises a material contravention of the Dublin City Development Plan 2016-2022; and
(4) A declaration that the Order is ultra vires and/or is invalid and of no legal effect; and/or
(5) A declaration that the Order is so irrational and/or unreasonable that it has to be unlawful and/or invalid; and
(6) A declaration that by reason of the manner in which the respondent brought forth the authorisation to proceed with the proposed development the subject of the decision impugned in the within proceedings, the applicants have been denied fair procedures and natural and constitutional justice.
16. The applicants also seek other reliefs not relevant for present purposes. The grounds upon which the reliefs are sought are as follows:-
(i) The proposed development of the Premises is a material contravention of the current Dublin City Development Plan 2016-2022.
(a) It is pleaded that the respondent failed to have regard to the requirements of s. 5.5.11, Policy QH30 and s. 16.12 of the respondent’s development plan, 2016-2022, (“the Second Development Plan”). The development of the premises should not have been authorised without an applicant for permission identifying the mandatory, specific and detailed requirements of Policy QH30 thereof. It is pleaded that there are already five existing institutional accommodation services located within 500m of the Premises and an additional seven separate social support services within the same radius. This is contrary to Policy QH30 and s. 16.12 of the Second Development Plan. It is claimed that the addition of the proposed development will comprise an undue concentration of services within the immediate area, thereby undermining the sustainability of the neighbourhood, contrary to s. 5.5.11 of the Second Development Plan. It is pleaded that neither the Order nor the recommendation of Ms. Igoe pursuant to which it was made identified the catchment area which the Premises is intended to serve and does not contain any statement regarding the management of the facility.
(b) It is also claimed that the respondent has erred in law as identifying an emergency as justifying the authorisation of a material contravention of the Second Development Plan.
(ii) The proposed development is a material contravention of the previous Dublin City Development Plan 2011-2017.
It is pleaded that the decision purportedly made by the Order on 28th October 2016 was in fact made long before the coming into effect of the Second Development Plan on 21st October 2016, and constitutes a material contravention of the respondent’s development plan 2011-2017, (“the First Development Plan”). The grounds relied upon by the applicant in relation to material contravention of the Second Development Plan are also relied upon in relation to material contravention of the First Development Plan
(iii) The Order retrospectively approves an earlier decision and works.
It is pleaded that the order purported to authorise works which had been planned and commenced at an earlier date, and in any case no later than 24th October 2016 and that accordingly the Order is ultra vires because it cannot retrospectively authorise works.
(iv) The Order is ultra vires/invalid by reason of it lacking the necessary temporal certainty required;
It is pleaded that the Order is invalid because :
(a) It fails to provide any detail as to the duration of the change of use purported to be authorised, and,
(b) It authorises a change of use which is of permanent effect and is irreversible save by way of further permission or authorisation, thereby leaving the respondent at large to continue the change of use indefinitely. It is claimed that that this is ultra vires the power of the respondent pursuant to s. 179(6) which envisages the use of such powers on a temporary basis only
(v) That there has been a denial of fair procedures in that the respondent wilfully withheld information from the public concerned, and the applicants in particular;
It is claimed that the applicants, as persons directly affected by the proposals, had an entitlement to be consulted by the respondent in connection with the same and to make submissions to the respondent in regard thereto. It is pleaded that the respondent denied the applicants their rights of public participation and accordingly denied the applicants fair procedures as well as natural and constitutional justice. It is also pleaded that the respondent wilfully and unlawfully withheld all information concerning the project’s proposals. The applicants claim that the respondent had a duty to advance its proposals for the development of the Premises by way of Part VIII of the Regulations
(vi) That the decision is so irrational as to be unreasonable.
The applicants claim there is already a proliferation of institutional accommodation and support services within the immediate area of the Premises and that the addition of a further 65 bed spaces is disproportionate and is so irrational as to be unreasonable.
17. The applicants claim that the recommendation of Ms. Igoe underpinning the Order does not evidence an emergency. While the recommendation repeatedly refers to a shortage of family accommodation, the proposed development envisages only the provision of single bed spaces. It is also pleaded that there is an insufficiency of information supplied in the recommendation of Ms. Igoe such as to justify the emergency asserted by the respondent. It is claimed that the Order relies upon out of date data so as to identify the precise and immediate nature of the alleged emergency.
18. It is further pleaded that if there is an emergency, it is one that has arisen through the failure of the respondent to effect a sufficient response to a longstanding obligation to provide housing, and in particular housing for families in its administrative area, within a reasonable period of time. The applicants claim that the respondent has failed to implement its own Rapid Build Housing programme which was authorised in November, 2015.
Statement of Opposition
19. The respondent delivered its statement of opposition on 13th December, 2016. All allegations contained in the statement of grounds are denied by the respondent in its statement of opposition. It is denied that there has been any contravention of either the First Development Plan or the Second Development Plan. It is pleaded that all local authority development is exempted development by reason of s. 4(1)(a) of the Act of 2000 and it is further pleaded that Part VIII of the Planning and Development Regulations 2001 (as amended) (the “Regulations”) have no application in circumstances where an emergency situation was deemed by the respondent to exist, and s. 179(6)(b) of the Act 2000 therefore applied. There was therefore no “application” to which policy QH30 of the Second Development Plan would apply.
20. The respondent pleads that the question of whether a proposal to provide or extend temporary homeless accommodation or support services results in an undue concentration of such uses or undermines the existing local economy, resident community or regeneration of an area is a matter of planning assessment and/or discretion of the respondent.
21. It is denied that there are five existing institutional accommodation services within 500m of the development as alleged by the applicants; the respondent states that there are only three such accommodation places within 500m of the Premises. The respondent pleads that the population within 500m of the Premises is just over 11,000 and pleads that the provision of a 65 bed homeless centre in addition to the existing 83 beds cannot be considered as an undue concentration in a catchment area of that population. The respondent also denies that there are seven separate social services within a 500m radius of the Premises, but pleads that even if there are, this is not contrary to Policy QH30 or contrary to the development standards specified in s. 16.2 of the Second Development Plan.
22. Moreover, the respondent pleads that the development is in accordance with its obligations under the Housing Acts, 1988 to 2009, with government policy for a housing-led solution to long term homelessness and the Second Development Plan itself. The respondent specifically refers to and relies upon the following sections of the Second Development Plan:-
(i) s.11.4.2 which provides :“The city council and other statutory agencies are obliged to provide appropriate accommodation and to work together to improve the range and quality of services available for homeless persons”.
(ii) Policy QH28 which provides:-
“It is the policy of Dublin City Council to support the implementation of the homeless action plan for Dublin”
(iii) Policy QH29 which provides:-
“To support the implementation of the homeless action plan framework for Dublin and support related initiatives to address homelessness.”
23. The respondent pleads that the development of the Premises is in accordance with the zoning of the lands concerned. The respondent pleads that the Second Development Plan envisages that there will be a need for an additional 2,500 residential units in the Liberties area over the life of the plan, and it is further envisaged that the homeless crisis will be eliminated through the provision of the required number of residential units across the city over the life of the development plan i.e. by the year 2022. It is pleaded that in the interim, the provision of 65 emergency bed spaces at the Premises in the context of the provision of 2,500 residential units in the Liberties area, over the next six years, and 29,500 citywide, cannot be considered to be a material contravention of the Second Development Plan.
24. It is pleaded that the First Development Plan has no bearing upon these proceedings because the Order was not made by the respondent until after the date the Second Development Plan came into effect. The respondent contends that the entry into a lease of the Premises by the respondent with the Archdiocese prior to the date of the Order did not and could not authorise the development of the Premises. The respondent denies that any works other than scoping works were carried out at the Premises prior to the date of the Order, but pleads that even if there were such works, this would not invalidate the Order.
25. It is further denied that the temporal scope of the Order is vague or uncertain in that the Order states that the change of use is temporary in nature pending a more sustainable long term option being provided through the provision of long-term accommodation or permanent housing options. It is pleaded that the temporary nature of the use of the Premises is confirmed by the fact that the lease is for a five year period with a break clause after three years. It is also pleaded that the respondent has waived any entitlement to renew the lease and that the respondent in a letter of 14th November, 2016 to the third-named applicant has stated that the respondent would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Premises beyond the 2017/2018 winter period.
26. It is denied that the Order authorises a change of use which is permanent and irreversible. It is denied that the respondent was under any obligation to consult with the applicants or the public generally in circumstances where the proposal was considered by the Assistant Chief Executive of the respondent to be necessary to deal with an emergency within the meaning of s. 179(6)(b) of the Act of 2000. It is pleaded that the plea on the part of the applicants of a denial of fair procedures is misconceived in circumstances where there is no procedure or process to which the applicants were a party. The respondent denies that there was any wilful withholding of information as alleged by the applicants or at all. It is pleaded that there is no legal basis for participation by the applicants in the decision of the respondents to make the Order.
27. The respondent denies that there is a proliferation of institutional accommodation and/or social support services within the immediate area of the Premises, and pleads that there is in fact a substantial shortage of homeless accommodation in the area and in the functional area of the respondent in general. It is therefore denied that the provision of 65 bed spaces could be considered to be disproportionate and/or unreasonable and/or irrational. It is pleaded that at present, and for the period since the previous expansion in capacity in Quarter 4 of 2015, all available temporary emergency accommodation for adults in Dublin is fully occupied and in regular use.
28. The respondent denies that the emergency has arisen through any failure on the part of the respondent to effect an efficient response to the problem of homelessness over a reasonable period of time; in the alternative, the respondent pleads that even if this is the case it is irrelevant to the requirement to take emergency action within the meaning of s. 176(6)(b) of the Act of 2000.
The Affidavits
29. As I mentioned at the outset, the proceedings are grounded upon the affidavits of Ms. Campbell, Ms. O’Connor and Mr. O’Malley. This gave rise to replying affidavits from Mr. Downey, Mr. John O’Hara, city planning officer with the respondent, Mr. Jim Keoghan, former assistant Chief Executive of the respondent, who made the Order, and Mr. Colm Moroney, administrative officer of the respondent and manager of the central placement service with the Dublin Regional Homeless Executive. These affidavits in turn gave rise to further replying affidavits from Ms. Campbell, Ms. O’Connor and Mr. O’Malley which in resulted in further exchanges of affidavits on behalf of each of the parties. In total, some seventeen affidavits were sworn on behalf of the parties in the proceedings.
30. In their grounding affidavits, each of Ms. Campbell and Ms. O’Connor described (as I have set out above) the effects of the closure of the Premises as a community centre in 2013, and the efforts that have been made to have it reopened as such. It is clear from these affidavits that the Premises had served a very useful purpose as a community centre until its closure. That is not disputed by the respondent, but nor is it an issue in the proceedings.
31. In their grounding affidavits, Ms. Campbell and Ms. O’Connor express their concerns that the use of the Premises as a 65 bed hostel for homeless persons will have multiple negative impacts which will be permanent because the Order is of no fixed duration. They each express concerns that such use of the Premises will give rise to increased problems of anti-social behaviour, as well as alcohol and drug abuse in the streets surrounding the Premises, which children traverse on their way to and from school. They say that there are already twelve homeless and social service facilities within 500m of the Premises and many more again within 1km, so there is already an undue concentration of such services in the area. Accordingly, they opine that the proposed change of use of the Premises is contrary to the Development Plan. They also complain about what they describe as the failure of the respondent to consult with the local community before embarking upon this project. They say that it is clear that the respondent knew that the project would attract huge local opposition, and that this is acknowledged by the Chief Executive of the respondent in his letter to Ms. O’Connor of 14th November, 2016. They also claim that since the respondent was exploring the use of the Premises for use as a hostel for the homeless as far back as May 2016, that the emergency relied upon by the respondent was neither sudden nor immediate, and that the respondent would have had time to go through the procedure required by Part VIII of the Regulations.
32. It should be observed that the concerns expressed by Ms Campbell and Ms. O’Connor as regards the impact of the development on the local community drew a sharp response from the respondent in an affidavit sworn by Mr. Daithí Downey dated 9th December, 2016. In his affidavit, Mr. Downey states that the affidavits of Ms. Campbell and Ms. O’Connor are “replete with exaggerated, ill-informed and prejudicial views of homeless persons”, views which the respondent rejects. Mr. Downey avers that the Premises will be serviced and maintained by the Dublin Simon Community and the Salvation Army through experienced and trained service providers who have detailed policies and protocols in place to ensure that there will not be disruption to the neighbourhood. He further avers that the lease of the Premises to the respondent requires the respondent to provide appropriate staffing resources to ensure the effective day to day management of the Premises and the respondent must comply with the ethos of the parish in its dealings with the service users and the community.
33. This in turn gave rise to further replying affidavits from Ms. Campbell and Ms. O’Connor. Ms. Campbell characterises Mr. Downey’s comments as being pejorative and offensive. She says that she is acutely aware of the challenges faced by those that are homeless, having been homeless herself during three different stages of her life. Moreover, she says she works closely with people who were formerly homeless to help them establish themselves and face their challenges. She says there is nothing exaggerated about the concerns expressed in her grounding affidavit, and that these are based on real life experiences. In her second affidavit, Ms. O’Connor also rejects Mr. Downey’s remarks and says that she too is very familiar with the problems experienced by those who are homeless, from her work in the community, for which she was awarded in 2016 the Dublin City Council Good Citizen Award. I think it important to record now that I am absolutely satisfied that the applicants bring these proceedings in good faith, and with the best of intentions for the community in which they live and serve, and that in doing so they are in no way motivated or influenced by any misguided prejudice against those misfortunate enough to be homeless.
34. In an affidavit sworn on 14th December, 2016 specifically to address the remarks of Ms Campbell and Ms. O’Connor in this regard, Mr. Downey acknowledged the contribution of Ms. Campbell and Ms. O’Connor to the community and in particular on behalf of persons experiencing homelessness. But he does not accept that the theories as identified by them in their affidavits are well founded, because the service that is to be provided at the Premises will be of the highest standard for the reasons set out already above. In both this affidavit and his previous affidavit, Mr. Downey refers to the respondents’ model of homeless services as set out in “Pathway to Home”, which I referred to earlier.. He says that a particular focus of this policy is to tackle the most significant risky and harmful homeless living situation i.e. “rough sleeping” and “street homelessness” which arise when a person does not avail of emergency accommodation and has no other shelter option available.
35. A considerable body of the affidavits exchanged between the parties is taken up with argument about the existing facilities for homeless in the vicinity of the Premises. It is perhaps somewhat surprising that there should be disagreement on what one would imagine would be a straightforward matter of fact. The respondent acknowledges that there are three facilities within a 500m radius of the Premises providing accommodation for homeless namely Viking Lodge, Back Lane Hostel and the Caretaker Hostel. However, the applicants contend that there are an additional five facilities namely the Iveagh Hostel, a Focus Ireland Hostel at John’s Lane West (but which the applicants acknowledge is closed and is now being redeveloped to provide 31 new housing units), the Merchants Quay night café, O’Shea’s Public House and a hostel known as the Backpackers Hostel. The respondents argue that the Iveagh Hostel and O’Shea’s Public House should be disregarded because they have nothing to do with the respondent. They contend that the Merchants Quay night café is a respite service only, and that people do not sleep there. They claim that the Backpackers Hostel is a commercial hostel and that there is no evidence that it is used by persons who are homeless.
36. The applicants identify some five support services that they say are used by homeless persons in the area. These are:-
• Community respite, an addiction rehabilitation service;
• The Bridge Project – a drug recovery education centre;
• Guild of the Little Flower, a facility that targets homeless and older people with food services, laundry services and social activities;
• Casadh, a drug stabilisation and progression service centre for the Dublin 8 community; and
• Castle Street Clinic, a HSE addiction services centre.
The respondent argues however that these services are not exclusively for homeless persons, but are for the benefit of the community at large.
Legislative Provisions and Provisions of Development Plan
37. At this juncture, it is useful to identify both the relevant legislative provisions and those parts of the Development Plan of the respondent relied upon in the proceedings.
Relevant Legislative Provisions
Planning and Developments Acts 2000-2014 (“the Act of 2000”)
38. Section 4 of the Act of 2000 sets out exempted developments for the purpose of the Acts:-
“4. – (1) the following shall be exempted developments for the purposes of this Act –
(aa) development by a local authority in its functional area.”
Section 15(1) of the Act of 2000 states:-
“15-(1) It shall be the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.”
Section 178 contains restrictions on development by certain local authorities and subsection (2) states:-
“178-(2) The council of a city shall not effect any development in the city which contravenes materially the development plan.”
Section 179 is entitled “Local Authority Own Development” and states:-
“(1) (a) The Minister may prescribe a development or a class of development for the purposes of this section where he or she is of the opinion that by reason of the likely size, nature or effect on the surroundings of such a development or class of development there should, in relation to any such development or development belonging to such class of development, be compliance with the provisions of this section and regulations under this section.
(b) Where a local authority that is a planning authority proposes to carry out development or development belonging to a class of development prescribed under para. (a) (hereafter in this section referred to as “proposed development”) it shall in relation to the proposed development comply with this section and any regulations under this section.”
(c) – repealed.
(d) – not relevant.
“(2) The Minister shall make regulations providing for any or all of the following matters:-
(a) the publication by a local authority of any specified notice with respect to proposed development;
(b) requiring local authorities to –
(i) (I) notify prescribed authorities of such proposed development or classes of proposed development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars plan or other information in respect thereof as may be prescribed;
(c) the making available for inspection, by members of the public, of any specified documents, particulars, plans or other information with respect to proposed development;
(d) the making of submissions or observations to a local authority with respect to proposed development.
(3) (a) The manager of a local authority shall, within 8 weeks after the expiration of the period during which submissions or observations with respect to the proposed development may be made, in accordance with regulations under subsection (2), prepare a written report in relation to the proposed development and submit the report to the members of the authority.
(b) A report prepared in accordance with paragraph (a) shall –
(i) describe the nature and extent of the proposed development and the principal features thereof, and shall include an appropriate plan of the development and appropriate map of the relevant area,
(ii) evaluate whether or not the proposed development would be consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the provisions of the development plan and giving the reasons and the considerations for the evaluation,
(iii) list the persons or bodies who made submissions or observations with respect to the proposed development in accordance with the regulations under subsection (2),
(iv) summarise the issues, with respect to the proper planning and sustainable development of the area in which the proposed development would be situated, raised in any such submissions or observations, and give the response of the manager thereto, and
(v) recommend whether or not the proposed development should be proceeded with as proposed, or as varied or modified as recommended in the report, or should not be proceeded with, as the case may be.
(4) (a) The members of a local authority shall, within 6 weeks of the receipt of the report of the manager, consider the proposed development and the report of the manager under subsection (3).
(b) Following the consideration of the manager’s report under paragraph (a), the proposed development may be carried out as recommended in the manager’s report, unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the manager’s report, or decides not to proceed with the development.
(c) For a resolution to have effect under paragraph (b)-
(i) it has to be passed not later than 6 weeks after the receipt of the manager’s report, and
(ii) in the case of a resolution not to proceed with a proposed development, it shall state the reasons for such resolution.
(5) (1) Each Act specified in the first and second columns of Part 1 of Schedule 3 is repealed to the extent specified in the third column of that Part opposite the references in the first and second columns.
(2) Each order specified in the first and second columns of Part 2 of Schedule 3 is revoked to the extent specified in the third column of that Part opposite the references in the first and second columns.
(3) Each Act specified in the first and second columns of Schedule 4 is amended in the manner stated in the third column of that Schedule opposite the references in the first and second columns.
(6) This section shall not apply to proposed development which –
(a) – not relevant,
(b) is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action.”
Planning and Regulations 2001-2015 (“the Regulations”)
39. The first article of Part VIII of the Regulations is article 80,which sets out developments prescribed for the purposes of s. 179 of the Acts of 2000-2014. Article 80(1)(k) prescribes any development other than those specified in paras. (a) to (j) (which are of no application in this case), the estimated cost of which exceeds €126,000.00, not being a development consisting of the laying underground of sewers, mains, pipes or other apparatus.
40. In an affidavit dated 9th December, 2016 sworn on behalf of the respondent, Mr. Downey states that the total cost of works carried out at the Premises to that date is of the order of €1,184,000. Accordingly, the procedures set out in s. 179 of the Act of 2000 and Part VIII of the Regulations would, in the ordinary course of events, apply to the works undertaken by the respondent at the Premises. The remainder of Part VIII of the Regulations sets out in some detail the procedures to be followed by local authorities in developments to which the Regulations apply. It is not necessary to set out those procedures here. However, it can be seen from s. 179(6)(b) that the requirement imposed upon local authorities to comply with s. 179 of the Act of 2001 and any regulations made thereunder does not apply to development which is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action, as is the case in relation to the refurbishment of the Premises by the respondent for the purposes of accommodating persons who are homeless. While the combined effect of s. 4(1)(aa) and s. 179(6)(b) of the Act of 2001 is to exempt any development of the kind described in s. 179(6)(b) from the requirements to obtain planning permission or to go through the procedure prescribed pursuant to s. 179 and Part VIII of the Regulations, that does not entitle a local authority to undertake development in contravention of its own development plan. It is clear from ss. 15 and 178 of the Act of 2000, that a planning authority has both positive and negative obligations as regards the development plan – the first being to take such steps as are within its powers and as may be necessary to secure the objectives of the development plan, and the second being not to effect any development which contravenes materially the development plan. It is common case that a planning authority remains subject to these obligations, notwithstanding that it may be exempt from any procedures to obtain permission for or secure approval under s. 179 of the Act of 2000,for the proposed development.
Relevant Provisions of Development Plan
41. It is pleaded on behalf of the applicants that the development of the Premises by the respondent is a material contravention of both the First and the Second Development Plans. The Second Development Plan came into effect on 21st October, 2016. As it happens however, the provisions of both development plans are almost identical in all material respects as regards these proceedings, save for a footnote in the First Development Plan, which does not appear in the Second Development Plan. For completeness, I set this foot note out in the next paragraph. While it is pleaded in the alternative by the applicants that the respondent is in breach of each plan, nothing turns on which plan is the relevant plan for the purpose of the proceedings. Accordingly, save for the footnote below, I will set out only those provisions of the Second Development Plan as are relevant and, for convenience, I will from this point onwards (save for in the next paragraph) refer to both plans together as “the Development Plan”.
42. The footnote in the First Development Plan referred to above stated:-
“Hostels for the care of people, such as, homeless hostels will not be allowed in areas where there is an over concentration of such facilities such as parts of the north inner city and south-west inner city in Dublin 1, 7 and 8.”
This footnote was not carried forward to the Second Development Plan. I queried counsel for the respondent about this, and in particular inquired if a conscious decision was taken not to carry the footnote forward to the Second Development Plan, or whether or not there was any record of any discussions or consideration of the issue. Following the taking of instructions, counsel for the respondent informed me that there was no indication given as to why the footnote was not carried forward to the Second Development Plan. It appears that from the very first draft of the Second Development Plan, there was no corresponding content in the Second Development Plan.
Section 5.5.11 Homeless Services
43. The City Council and other statutory agencies provide appropriate accommodation and work together to improve the range and quality of services available for homeless persons. An over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. A coordinated approach to the provision and management of these facilities as well as their spread across the City is important.
44. But it is the policy of Dublin City Council:-
QH29 to support the implementation of the Homeless Action Plan Framework for Dublin and support related initiatives to address homelessness.
QH30 to ensure that all proposals to provide or extend temporary homeless accommodation or support services shall be supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. All such applications shall include: a map of all homeless services within a 500m radius of the application site, a statement on the catchment area identifying whether the proposal is to serve local or regional demand; and a statement regarding the management of the service/facility.
16.12 Standards – Institutions/Hostels and Social Support Services
An over-concentration of institutional hostel accommodation, homeless accommodation and social support institutions can potentially undermine the sustainability of a neighbourhood and so there must be an appropriate balance in the further provision of new developments and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum. Accordingly, there shall be an onus on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity, or the regeneration of the area.
All such applications for such uses shall include the following:-
• A map of all homeless and other social support services within a 500m radius of the application site
• A statement on catchment area, i.e. whether a proposal is to serve local or regional demand
• A statement regarding management of the service/facility.
45. As to the zoning of the lands on which the premises are situate, the zoning is categorised as objective Z1 which includes buildings for the health, safety and welfare of the public. It is common case that the use of the Premises for the accommodation of homeless persons would be permitted by the applicable zoning objective.
Discussion and Decision
46. These proceedings are concerned with one of the most pressing and significant social issues facing many societies today. Homelessness has always been an issue for society, but it is perplexing that in an era of unprecedented prosperity (notwithstanding the recent financial crisis), it should continue to present as a problem to any significant degree at all. That this is so is undoubtedly due, at least to a significant degree, to the underlying complexity behind the reasons that give rise to homelessness. The reasons for homelessness are manifold, and this is addressed by Mr. Downey in his second affidavit wherein he avers that the DRHE, having reviewed the records of those presenting as homeless over separate months in 2015 and 2016, identified the key reasons giving rise to homelessness in recent times. These are: service of notices to quit in private tenancies, overcrowding and relationship breakdown. The DRHE identifies that over two thirds of family households presenting as homeless in Dublin did so because of tenure insecurity caused by increased rates of rent inflation and notices of rent increases that were unaffordable. The DRHE has devised a very comprehensive policy to address homelessness in its Pathway to Home strategy. In addition, Development Plan has clear objectives to address homelessness, and policy QH29 specifically states that it is the policy of the respondent to support the homeless action framework for Dublin (which is the plan set out in Pathway to Home).
47. It is apparent from the face of the Order that it was made in order to address what the Assistant Chief Executive considered at the time to be an emergency in the provision of accommodation for the homeless. The affidavits sworn on behalf of the applicants grounding these proceedings do not dispute that there is a crisis or an emergency in the provision of homeless accommodation. However, this is put in issue by the applicants in paragraph (E)(34) of the statement of grounds under the heading “the decision is so irrational as to be unreasonable”, as summarised above. Notwithstanding therefore that the issue is not raised by the applicants in their affidavits, it is necessary for me to address the issue even though, to put it mildly, it can hardly be gainsaid that there was at the time and there remains now a crisis in the Dublin city area in the provision of accommodation for persons who are homeless
48. In his affidavit of 14th December, 2016, Mr. Downey refers to and exhibits the respondent’s Homeless Action Plan Framework for the period 2014-2016, contained in “Pathway to Home”. Mr. Downey says that the primary emphasis of the Pathway to Home strategy is on securing a speedy exit from a homeless living situation to independent living in a tenancy (with support as required). He says that for the period January – September 2016, a total of 1,241 moves to tenancies were provided for homeless households in Dublin. He avers:-
“A particular focus for Pathway to Home services is on tackling the most significantly risky and harmful homeless living situation that manifests in Dublin. This is commonly described as “rough sleeping” and “street homelessness” whereby a person is not availing of emergency accommodation provision and has no other shelter option available. Core to reducing the extent of this living situation is the provision of a sufficient capacity of available emergency accommodation and the quality of its service delivery.”
49. Mr. Downey then goes on to provide some statistics in relation to homelessness in Dublin. He says that in the period between September 2015 and September 2016, the total population in homeless accommodation in Dublin increased from 3,673 persons (comprising 2,330 adults and 1,343 children) to 5,053 persons (comprising 2,988 adults and 2,065 children).
50. Mr. Downey refers to a “rough sleeping count” undertaken by the respondent on the night of 22nd November, 2016 into the morning of 23rd November, 2016 which identified 142 persons sleeping rough. In addition, on that night, 77 persons accessed the Merchant’s Quay Ireland night café, which Mr. Downey says is not a night shelter but provides respite to persons who do not access emergency accommodation. He says that the proposed development of the Premises, coupled with the development of the other facilities at Ellis Quay and Little Britain Street/Green Street, will increase emergency accommodation capacity by 230 bed spaces in Dublin. He says that:-
“The proposed development constitutes immediate humanitarian action to open homeless facilities to ensure beds are available for all persons who are at risk of rough sleeping with the aim of preventing fatalities and/or serious harm.”
51. In an affidavit sworn on 21st December, 2016 Mr. Colum Moroney, Manager of the Central Placement Service with the DRHE, identifies the number of people refused a bed in Dublin city after the allocation of all beds in emergency accommodation facilities during the period between 25th November, 2016 and 15th December, 2016. During this period, there was a total of 502 refusals of accommodation ranging from the lowest number of 9 on 9th December, 2016 to the highest number of 39 on 6th December, 2016. All of the above clearly demonstrates that there was, both on the date of the Order and thereafter a crisis in the provision of emergency accommodation for homeless persons. This was referred to in the recommendation of Ms. Igoe of 28th October, 2016 to the Chief Executive of the respondent.
52. The applicants however argue that the respondent caused or contributed to this emergency by failing to effect its Rapid Build Housing programme in a timely manner. This is addressed by Mr. Downey in his second affidavit, who says that this allegation is factually incorrect, and that the respondent has (as of the date of his affidavit, 14th December, 2016) completed 22 housing units , and a further 130 units were due to be completed and in use by the end of June of this year. In any case I would have to agree with the submission of the respondent about this issue, that even if the respondent is in some way responsible for the emergency, that scarcely makes the resolution of the problem any less urgent.
53. The applicants also advanced another argument under this heading, to the effect that the respondent effectively contrived a situation where there would not be enough time to comply with Part VIII of the Regulations, thereby enabling it to drive the proposal through relying upon the emergency powers conferred upon it by s. 179(6)(b) of the Act of 2000, and avoiding the public consultation process prescribed therein. The applicants argue that the respondent could have completed the Part VIII process and developed the Premises (assuming for the purpose of this argument that the proposal was approved at the end of the Part VIII process) within the same time-frame as it did relying on its emergency powers. However, I think that this is highly unlikely. Realistically, I don’t believe it would have been appropriate for the respondent to commence a Part VIII process before taking a lease of the Premises, or without at least having entered into a written agreement for lease of the Premises with the archdiocese. There was no evidence that such an agreement was entered into, and the evidence established that a draft lease was only prepared in August, 2016 and was thereafter finalised and executed on 28th September, 2016. So the earliest the respondent could have commenced the Part VIII process was 28th September, 2016. I set out above section 179 of the Act of 2000 , and I think it is highly unlikely that there would have been sufficient time available to the respondent both to follow the procedures prescribed by s.179 of the Act of 2000 and Part VIII of the Regulations and thereafter carry out the necessary works to the Premises in order to have it available for use in December, 2016, which was the objective of the respondent.
54. For all of these reasons, I am of the opinion that, at the time of the making of the Order, and for that matter ever since, there was an emergency as regards the availability of accommodation for the homeless, and that the respondent had ample justification for its decision to invoke s. 179(6)(b) of the Act of 2000.
55. Having thus concluded, and before proceeding to address the question as to whether or not the development of the Premises is in material contravention of the Development Plan, I will first address the applicants’ claim that they were entitled to be consulted about the proposed development, as persons affected by the development of the Premises. It is claimed that the failure to consult with the applicants is a denial of their right to fair procedures and to participate in the decision-making process. The applicants rely upon the decision of the Supreme Court in Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1. I cannot accept this argument. There are very specific procedures for consultation and participation in the planning process set out in the Act of 2000. There is one set of procedures where planning applications are concerned, and another where local authority development is concerned, as provided for in Part VIII of the Regulations. No consultation procedure is prescribed for development undertaken by a local authority in cases of emergency pursuant to s. 179(6)(b) of the Act of 2000, and the reason for this is perfectly obvious; a requirement to consult in such circumstances could hamper a local authority in addressing an emergency. The protection that members of the public enjoy in such circumstances is contained in s. 178(2) of the Act of 2000, which prohibits the local authority from giving effect to any development that is in material contravention of the Development Plan. I might add that the circumstances of this case are entirely different to the circumstances that gave rise to the Supreme Court decision in Dellway.
56. Having thus concluded, it is now necessary to address the applicants’ arguments that the development of and change of use of the Premises are in material contravention of the Development Plan. The Development Plan acknowledges that an over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. Section 5.5.11, policy QH30 and s. 16.12 of the Development Plan are not inconsistent with the objectives set out elsewhere in the Development Plan to address homelessness. Rather they recognise that there is a need to make sure that such facilities are not overly concentrated in any one area, to the detriment of that area. Policy QH30 makes it clear that there is an obligation on those proposing to provide or extend temporary homeless accommodation to satisfy the respondent (as planning authority) that the proposal will not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. That is the planning objective to which the procedural elements of policy QH30 are directed. The second part of policy QH30 indicates the minimum documentation that must be provided with “all such applications” in order to assist the respondent as planning authority in deciding whether or not the proposal meets this objective. The words “proposals” and “applications” are used interchangeably in policy QH30.
57. Section 16.12 is very similar in its content to policy QH30. It sets out the policy objective of securing an appropriate balance in the further provision of new developments of institutionalised hostel accommodation, homeless support institutions and social support institutions and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum, and then goes on to impose an obligation on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity or the regeneration of an area. It requires applications to include documentation of the same kind that is specified in policy QH30, in order to assist the planning authority in arriving at a determination as to whether or not the proposed development is consistent with the planning objective set out in section 16.12.
58. It is not disputed that the effect of the making of an Order pursuant to s. 179(6)(b) of the Act of 2000 exempts the planning authority from the requirements of s. 179 of the Act of 2000, and Part VIII of the Regulations. Nor is it disputed however that the making of such an order does not entitle a planning authority to effect development that is in material contravention of its development plan, contrary to s. 178(2) of the Act of 2000. It is the applicants’ contention that the development of the Premises by the respondent is in material contravention of the Development Plan by reason of the failure of the respondent to support its proposal for the development of the Premises with information demonstrating that it will not result in an undue concentration of temporary homeless accommodation or support services relating thereto, nor undermine the existing local economy, resident community, or regeneration of an area. The applicants further contend that the development of the Premises for use as a facility for the homeless, coupled with the existing facilities for such purposes in the area, results in an undue concentration of the same contrary to policy QH30 and section 16.12 of the Development Plan. Moreover, the applicants submit that even prior to this development, there was already an undue concentration of such uses within 500m of the Premises, and that the development of additional facility for homeless accommodation at the Premises is such that the materiality of the contravention is beyond dispute.
59. For its part, the respondent denies that there is an undue concentration of homeless accommodation, or support services for the same, in the vicinity of the Premises either before or after the development of the Premises for such purposes. Furthermore, the respondent contends that the reliance by the applicants upon policy QH30 and s. 16.12 of the Development Plan is misplaced, because, in the submission of the respondent, those policies are clearly predicated upon there being either an application for planning permission or a proposal for and consideration of the development pursuant to Part VIII of the Regulations. Since neither arises in this case (by reason of the development being carried out pursuant to the Order declaring an emergency) there was no obligation on the respondent to prepare the documentation that would otherwise require to be prepared pursuant to the policy QH30 or s. 16.12 of the Development Plan.
60. I was referred by counsel to many authorities concerning the principles applicable to the interpretation of a development plan. In the case of Wicklow Heritage Trust Ltd v Wicklow County Council [1998] IEHC 19 McGuinness J., following a review of a number of authorities, identified the following principles as being applicable at p. 35:-
“(1) It is for the Court and not for the planning authority to decide as a matter of law whether a particular development is a material contravention of the local development plan.
(2) A development plan forms an environmental contract between the planning authority and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and further that the Council itself will not effect any development which contravenes the plan materially. In seeking to interpret the objectives set out in a Development Plan the court should ask what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.
(3) The requirements of the planning law must be applied with as much stringency against the local authority as they would against a private developer.
(4) It is necessary for a local authority to include all its objectives in its Plan. If it were otherwise it would mean that the local authority could totally override its own plan.”
61. So how would a reasonable person with no relevant planning expertise interpret policy QH30 and s. 16.12 of the Development Plan? The first part of policy QH30 refers to all “proposals” to provide or extend temporary homeless accommodation or support services for homeless persons. No reference at all is made to planning applications or to the Part VIII procedure of the Regulations. It requires that such proposals are supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, residential community or regeneration of an area. The second part of policy QH30 then prescribes the documentation to accompany all such “applications”. The words “proposals” and “applications” are used interchangeably, providing fertile ground for argument in these proceedings. Insofar as it has led to confusion, that confusion is, I think, most readily resolved by the reference to the word “all” before “proposals” in the opening part of policy QH30, and subsequently the use of the word “such” before applications, which is clearly intended to refer back to the proposals referred to earlier. The words are also used interchangeably in s. 16.12, but here again it states that “any proposal for homeless accommodation or support services will not result in an undue concentration of such uses…” In my view, a reasonable member of the public, if he or she were to dwell on the issue at all, would probably resolve the issue in his or her own mind by concluding that whatever the background to the proposal, and regardless as to whomever is making the proposal it will be subject to the kind of scrutiny envisaged both in policy QH30 and s. 16.12 of the Development Plan in order to ensure that it meets the objectives of the policies set out therein. Such a person would see the objectives of the policies as paramount, and would, in my view, be highly unlikely to embark upon a consideration of the genesis of the proposal under consideration, because the policy objective of avoiding an undue concentration of such uses must, as a matter of logic, apply to all proposals. It would make no sense if the policy could be avoided, through the use of emergency provisions, by the planning authority itself, with the possible result of an over concentration of such uses.
62. The respondent has also argued that the procedural requirements of policy QH30 and s. 16.12 were never intended to and clearly do not apply to emergency measures, and further argues that since the proposals make it clear that the use of the Premises is temporary only, there is no contravention of the Development Plan. If there were a temporal limitation on the use of the Premises, this argument might carry some weight. A proposal that is limited to a brief period of time is unlikely to have a long-term effect on the neighbourhood. But the respondent has been very careful to avoid such a limitation, and has expended a considerable sum of money on the Premises. No doubt it does not intend to use the Premises for homeless accommodation purposes for ever more, but it does intend to do so indefinitely. The fact that the lease of the Premises to the respondent is for five years only, and that it has waived its statutory entitlement to a new tenancy, does not prevent the respondent from agreeing to terms of a new lease with the archdiocese upon the expiration of the current lease. And in any case, if it is indeed the case that there is already or will be after this development an undue concentration of such uses in the area, the period of five years may be considered long enough to have the adverse consequences contemplated by the Development Plan. That is a planning judgment for the respondent to make, but it has not done so. It can hardly be doubted either that if a third party came to it with the same proposal, the respondent would require that party to commit to a date on which the use of the Premises would cease, if it was otherwise considered likely to give rise to an undue concentration of such uses in the area. It follows therefore that the fact that the period of intended use of the Premises remains open ended defeats any argument that the restrictions set out in policy QH30 and s. 16.12 of the Development Plan do not apply to emergency measures taken by the respondent, simply because the recommendation of Ms. Igoe states that the use of the Premises is to be temporary in nature.
63. It is clear from the recommendation of Ms. Igoe to the Chief Executive of the respondent that no documentation or information of the kind required by policy QH30 or s. 16.12 was prepared by the respondent. Furthermore, it is apparent that prior to the institution of these proceedings, no consideration was given by the respondent at all to the question as to whether or not the proposed development was in compliance with the Development Plan, whether in the context of policy QH30, s. 16.12 or otherwise. The respondent did not therefore consider and form any opinion as to whether the Premises was located in an area where there was already an undue concentration of such services, or, if not, whether the development of the Premises as proposed would give rise to such an undue concentration when taken together with existing facilities. It seems that the respondent addressed this issue for the first time for the purpose of resisting these proceedings. Up to that point, the entire focus of the respondent was to address the urgent need for the provision of accommodation for the homeless.
64. It follows from this that the failure on the part of the respondent to prepare the information and documentation required by policy QH30 and s. 16.12, even though it would only be preparing it for its own consideration, constituted a contravention of the Development Plan. The question that follows from this is whether or not this amounts to a breach of s. 178 (2) of the Act of 2000? It will be recalled that that section states: “The council of a city shall not effect any development in the city which contravenes materially the development plan.”
65. Referring to s. 178(2) of the Act of 2000, counsel for the respondent argued that in considering the section, it is the work itself or the change of use associated with the development that must be considered, and not the decision making process. He submitted that the meaning of the word “effect” in the section is directed to the carrying out of works, or a change of use, and that it is only the actual carrying out of works or a change of use that can give rise to a contravention of a Development Plan, and not the making of a decision to do the same. He referred to the Concise Oxford Dictionary of Current English (eighth ed.) which defines the word “effect” as meaning to “bring about or accomplish, or to “cause to exist or occur”. He submits that in making a decision pursuant to s. 179(6)(b) of the Act of 2000, a local authority is not obliged to have regard to the Development Plan in the decision making process, in the same way that it is expressly obliged to do so (pursuant to s. 34 of the Act of 2000) when considering a planning application. He refers to Simons, Planning and Development Law, 2nd Ed., para. 12-194 in which it is stated that:-
“In most cases in which a statutory discretion is conferred, some indication will be given in the legislation as to the matters which are to inform the exercise of that discretion. Perhaps the most comprehensive scheme is to be found in relation to the planning legislation itself. There, in deciding to grant or refuse planning permission, a planning authority or An Bord Pleanála shall consider the proper planning and sustainable development of the area. In addition, regard is to be had to a number of matters including, for example, the Development Plan”.
It is submitted that since there is no such obligation in the legislation as regards the exercise of powers pursuant to s. 179(6)(b) of the Act of 2000, there is no obligation on the respondent to have regard to the Development Plan when invoking that sub-section. But yet it is accepted by the respondent that the invocation of s. 179(6)(b) of the Act of 2000 does not entitle a local authority to carry out development in breach of s. 178(2) of the Act of 2000.
66. In reply to this argument, counsel for the applicants submitted that the respondent was attempting to separate the decision to undertake works and/or change the use of the Premises from giving effect to that decision. He submitted that the problem with this line of argument is that it would leave the applicants with no remedy; the decision itself could not be challenged for the reasons advanced by the respondent, and the carrying out of works would be exempt from enforcement proceedings – such as an application for injunctive relief under s. 160 of the Act of 2000 – because the carrying out of the works by the respondent would be exempt from planning permission and also from the Part VIII process provided for by the Regulations by reason of the use of s. 179(6)(b). Moreover, he submitted that all of the cases relied upon by the applicants in their submissions were challenges to decisions, which decisions were quashed by the courts because the implementation of those decisions would have constituted a material contravention of the Development Plan. In this case, the decision itself was taken in contravention of the Development Plan and it is submitted that that contravention was a material convention of the Development Plan because policy QH30 and s. 16.12 are very prescriptive and contain specific, mandatory measures to be complied with before any proposal for such development may be considered and approved. The applicants rely upon the decision of Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678 wherein he stated at para. 53:-
“The way in which Development Plans are set out vary. Certain aspects of the plan may have a high level of specificity. For example the zoning attached to certain lands may preclude development of a particular type in express terms. Where development of a particular type is permitted, specific parameters, such as plot ratios, building heights or the like may be specified. In those cases it may not be at all difficult to determine whether what is proposed is in contravention of the plan. In those circumstances it would only remain to exercise a judgment as to the materiality of any such contravention.”
67. As to materiality, it is submitted that the test is that articulated by Barron J. in the case of Roughan v. Clare County Council, (Unreported, High Court, Barron J., 18th December 1996), which test was approved and applied by Clarke J. in Maye. In Maye, Clarke J. stated:-
50. 6.1 So far as materiality is concerned I adopt the test set out by Barron J. in Roughan v. Clare County Council (Unreported, High Court, Barron J., 18th December, 1996) where he stated as follows at pp. 5 to 6 of the unreported judgment:-
“What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there are no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention.”
68. It is submitted on behalf of the applicants that these proceedings have been brought on behalf of a large number of persons living in the local community and that, based on the evidence before the court, it is abundantly clear that local interests might reasonably have been expected to oppose the proposed development. It is further submitted that this is borne out by the letter of the Chief Executive of 14th November, 2016 to the third named applicant wherein he acknowledges that the failure to consult with the local community in relation to the proposed development is a matter of considerable annoyance and indeed anger to some members of the community, which the Chief Executive says is both understandable and unfortunate. For its part, in response to this the respondent argues that the letter of the Chief Executive is no more than an acknowledgement of a shortcoming of courtesy, and falls far short of demonstrating the kind of opposition required to be taken into account when considering materiality.
69. Having considered these arguments, I have come to the conclusion that the failure to apply policy QH30 and s. 16.12 of the Development Plan in considering the proposal to develop and change the use of the Premises is a material contravention of the Development Plan. I have come to this conclusion for several reasons. Firstly, as the applicants argue, it is clear that there is a high degree of specificity prescribed in the Development Plan in relation to the procedures for approval of such developments. It is clear that no effort at all was made to comply with these procedures, and that the entire focus of the respondent, perhaps understandably, was upon addressing the emergency it faced.
70. Secondly, there cannot be any doubt that the purpose lying behind this high degree of specificity was to ensure that the respondent would have available to it sufficient information to decide whether or not the proposed development would give rise to an undue concentration of such facilities in the area, to the detriment of the area. The possibility of such detriment is expressly acknowledged by the Development Plan. The argument that the respondent has no obligation to have regard to the provisions of the Development Plan in making a decision for the purpose of s. 179(6)(b) of the Act of 2000 cannot possibly be correct in light of the very express requirements of policy QH30 and s. 16.12 of the Development Plan and the underlying purpose of that policy and section, and also having regard to the obligation in s. 178(2) of the Act of 2000 not to effect development in material contravention of the Development Plan.
71. Moreover, as a general proposition, Simons opines at para 12-94 that:-
“Before embarking on development, a local authority should therefore address its mind to the question as to whether or not the particular development represents a material contravention of the Development Plan. Presumably no responsible local authority would proceed with the development unless it was satisfied that there was no material contravention involved, and thus it would seem that a decision to proceed with a particular development should, by definition, indicate that the local authority was of the view that there was no material contravention.”
72. The procedural elements of policy QH30 and s. 16.12 do no more than prescribe how the respondent should comply with this obligation. Even if these requirements were not set out in the Development Plan, there would in my view be an obligation on the respondent to consider whether or not the proposed development contravenes the Development Plan, in view of s.178(2) of the Act of 2000. The question as to whether nor not the change of use of the Premises might contribute to or give rise to an undue concentration of such facilities in the area, with the attendant detrimental consequences surmised by the Development Plan, is clearly an important one, and one that is likely to be of significant interest and concern to the residents in the area. As a matter of fact, the development of the Premises has attracted local opposition, which the Chief Executive of the respondent has described as understandable. In any case in my view, the people of the locality have real and substantial grounds for such concerns.
73. It follows from the above that the Order must be quashed, not because the development and change of use of the Premises is in material contravention of the Development Plan (about which I make no finding), but because in failing to comply with the specific procedures for such developments set out in policy QH30 and s. 16.12 of the Development Plan, and in particular in failing to consider and make any decision upon the question as to whether or not the development and change of use of the Premises will contribute to or give rise to an undue concentration of such facilities in the area, or have the detrimental consequences described in policy QH30 and s. 16.12, the respondent, in making the Order, has effected development in material contravention of the development plan.
74. Finally, I should add that it was strongly urged on behalf of the respondent that the decision as to whether or not the development and change of use of the Premises gives rise to an undue concentration of such facilities in the area, such as to have the adverse consequences referred to in policy QH30 and s. 16.12 is a decision that requires planning expertise and as such is a matter for the respondent as planning authority, and not the court, and further that any such decision is only amenable to judicial review in accordance with the well-established principles laid down by the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Counsel for the respondent posed the following rhetorical question – even if the applicants are correct about the number of facilities and support services for homeless in the Carman’s Hall area, how is the court to arrive at any conclusion as to whether or not these constitute an undue concentration in the area? I think that counsel is correct that the question as to what constitutes an undue concentration of such facilities, and the effect that they might have in any given area is a matter requiring planning expertise and calls for planning judgement. The difficulty in this case is that it is clear that the Order was made without any regard to these matters at all. Not only was there no material before the Chief Executive upon which to base a decision that the development of the Premises would not give rise to an undue concentration of such facilities, no decision to this effect was taken at all by the respondent. The change of use of the Premises may or may not constitute a material contravention of the Development Plan, but since there has not been compliance with either policy QH30 or s. 16.12 of the Development Plan, and since the respondent has not otherwise given any consideration to this question, there is no decision to review in this regard. (whether in accordance with the O’Keeffe principles or otherwise).
75. I am very mindful of the potential consequences of this decision, not just for the respondent but for those most vulnerable people who are benefiting from the Premises. I am also mindful of the commitment given by the Chief Executive of the respondent, in his letter to the third named applicant of 14th November, 2016, to consult with the local community before deciding to extend the use of the Premises beyond the 2017/2018 winter period. Accordingly, I will hear counsel in relation to the orders that must flow from this conclusion.
76. Finally, I mentioned earlier that the respondent has raised an issue as to the capacity of the first and second named applicants, specifically it is claimed that as unincorporated associations, they do not have the capacity or legal personality to bring these proceedings. If I had made a decision adverse to the applicants, then it would be necessary for me to address these arguments in order to be able to address the issue of costs. However, since I have found in favour of the applicants, and since the third named applicant is an individual whose entitlement to bring forward the proceedings is in no way challenged (or in doubt), it is unnecessary for me to address the question as to whether or not the first and second named applicants had capacity to bring the proceedings.
Alen-Buckley v An Bord Pleanála (No. 2)
[2017] IEHC 541
JUDGMENT of Ms. Justice Costello delivered on the 12th day of May, 2017
1. This is an application brought by the second named respondent (“the State defendants”) for: –
“An Order seeking the dismissal and/or striking out of the Applicant’s proceedings and/or the pleas and claims made herein sought against the Second Named Respondent pursuant to Order. 19 rules. 27 and/or 28 RSC and/or the inherent jurisdiction of his Honourable Court insofar as the same discloses no reasonable cause of action against the Second Named Respondent and/or is frivolous and/or vexatious and/or an abuse of process and/or is bound to fail”.
2. The applicants brought an application for leave to seek judicial review to quash a decision of An Bord Pleanála (“the Board”) of the 14th December, 2016, granting the second named notice party planning permission (Reg. REF. PL 93.244006) for a development comprising inter alia eight no. wind turbines with an overall height of up to 126.6 metres, one no. meteorological mast with wind measuring equipment attached, access roads, electrical substation compound, equipment and control building and ancillary site works at Knocknamona, and other town lands, Co. Waterford.
3. On 16th February, 2017, the applicants applied ex parte for leave to seek judicial review of the decision. The application was adjourned to 20th February, 2017, and on 20th February, 2017, Noonan J. granted the applicants leave to seek the judicial review as sought. In the usual way, the order recites that leave to apply by way of application for judicial review for the reliefs set out at para. 4 of the statement of grounds is granted on the grounds set forth in para. 5. The reliefs at para. 4 of the statement of grounds are as follows: –
“(i) an order of certiorari quashing the decision of An Bord Pleanála to grant planning permission for a proposed development and construction of eight no. wind turbines of up to a height of 126.6 metres together with ancillary equipment of Knocknalogh, Lower/Earanctok, Upper/Knocknamona, Woodhouse/Tinakilly/Monageela/Killatar, Dungarvan, Co. Waterford which application planning register reference no. 4/600109 An Bord Pleanála reference PL 93/244006 was made on 14 day of December 2016;
(ii) A declaration that the application made and in particular the public notice failed to comply with the requirements of Environmental Impact Assessment Directive 2011/92 EU and in respect of the project the subject matter of that Environmental Impact Assessment failed to properly notify the public as is required under the Directive about the true nature and extent of the Development.
(iii) A Declaration that by virtue of the nature and extent of the application and in particular the failure to identify as part of the application the grid connection works, the Respondent Planning Appeals Board was not capable of adequately conducting an Environmental Impact Assessment in respect of that development and in particular from imposing mitigation measures in respect of that part of the grid connection which was not included in the application.
(iv) A Declaration that in seeking to impose conditions in respect of a part of a development, namely the connection of a proposed windfarm by way of a grid connection to the network, the Respondent could not impose conditions on land which lay outside the control of the developer and/or impose conditions on lands did not form part of the application and/or in respect of part of the development which is not the subject matter of a planning application.
(v) A Declaration that a planning application for a wind turbine development which requires as part of the project a connection to the national grid must contain the totality of the application to the relevant Planning Authority and must insofar as development is described in the Environmental Impact Statement must (sic) be consistent with development for which planning permission is sought and it is ultra-vires to determine an application and purport to include conditions relating (sic) a development which did not form part of the application.
(vi) A Declaration that the application lodged pursuant to An Bord Pleanála ref. PL 92.244006 did not comply with the provisions of the Planning and Development Regulations 2001 and in particular Part 4 of the Planning and Development Regulations 2001 (as amended).
(vii) A stay on the implantation of planning permission PL 92.244006.
(viii) Interim and interlocutory relief.
(ix) Further and other relief.
(x) The costs of this application”.
4. On the 23rd February, 2017, the proceedings were served on the State defendants. The second named notice party applied to have the proceedings admitted into the commercial list of the High Court. On the 13th March, 2017, by order of the High Court (McGovern J.), the proceedings were entered into the commercial list and a timetable for a trial on the 11th July, 2017, established. On the 15th March, 2017, the State defendants’ solicitors wrote to the applicants’ solicitors pointing out that as no express relief had been sought against the State defendants if they would confirm that they would permit the State defendants to be released from the proceedings and discontinue the proceedings as against them, in that event they undertook that they would not seek costs to date as against the applicants.
5. On the 20th March, 2017, the applicants’ solicitors replied to the letter of the 15th March, 2017 in the following terms: –
“These proceedings relate in part to issues relating to the transposition of Council Directives 92/43/EU and 2011/92 EU.
We refer you in particular to the granted (sic) at paragraphs. 4 and (ii), (iii) and (iv) of the Statement required to ground the application for judicial review based on the grounds set out at paras. 5 xvii, xviii, xxv, xxvi, xxvii, xxviii and xxxiv in this regard.
The primary respondent is the Board of (An Bord Pleanála) as the entity who made the decision and to the extent that it acted ultra vires due to the manner it determined the application.
We are however concerned lest the Board may rely on the domestic law provisions to authorise and justify the manner in which it determined the application. In the event that it does so then the extent to which any such domestic law provision appropriately transposes the requirements of the Directives must be reviewed and accordingly clearly Ireland and the Attorney General are appropriate respondents.
It may be that these issues will become clearer when the respective Statements of Opposition and replying affidavits are filed and we have no objection if the State wishes to reserve it’s (sic) position pending the extent to which the Board seeks to raise transposition issues and the extent of the State’s involvement that will be required in those circumstances can be reviewed at that stage.”
6. In light of that letter, the State defendants brought the motion which came on for hearing before me on the 4th May, 2017.
The Case of the State Defendants
7. The State defendants argue that the applicants seek no relief against the State defendants and accordingly these judicial review proceedings should be dismissed as against the State defendant.
8. Secondly, they state that only three of the 37 grounds set out in the statement of grounds in anyway concern the State defendants. These are (xxv), (xxvi) and (xxvii). They read as follows: –
“(xxv) the Respondent erred in law and in fact in the assessment of the visual impact of the development which assessment was based not on Development Plan policies as is required under the Planning & Development Act but on the guidance set out in the Wind Energy Guidelines 2006. The Respondent failed to have regard to relevant considerations in it’s (sic) determination of the application. Insofar as the Respondent Planning Appeals Board acted without jurisdiction in determining an application where the development the subject matter of the planning application is materially different than (sic) the development the subject matter of the Environmental Impact Statement, Second Named Respondent has failed to transpose the requirements of Council Directive 2011/92/EU.
(xxvi) The Second Named Respondent has failed to transpose Council Directive 2011/92/EU in providing for a process which fails to adequately notify the public and to allow appropriate and/or effective notification of the public which is expressly provided for in the Environmental Impact Assessment by the publication of notices which failed to disclose to the public the true nature and extent of a development the subject matter of the Environmental Impact Assessment.
(xxvii) The determination of planning application 14/600109 An Bord Pleanála Reference PL93.2440006 if made in a manner consistent with the Planning & Development Act and Planning & Development Regulations 2001 (as amended) made thereunder, renders the statutory scheme inconsistent with and incompatible to Council Directive 2011/92/EU and the Second Named Respondent failed to appropriately transpose the requirements of the Directive.”
9. In relation to ground (xxv), the State defendants submit that they cannot understand what is meant, but that whatever it means, it does not give rise to a transposition point.
10. In relation to ground (xxvi) they submit that the court must first determine that the procedure followed by the Board was lawful and authorised by either the Act or the Regulations. If the actions of the Board were not lawful, then that is the end of the matter. If, on the other hand, the court holds that the actions of the Board were lawful, in the sense that they were authorised by the Act or the Regulations, it is only then that the court will have to consider whether the legislation or the Regulations fails properly to transpose the Directive into Irish law as alleged by the applicants. It is only at this point that there could be a case to answer. However, even if a court were to proceed to conclude that the Directive had not been properly transposed into Irish law, the fact remains that the applicants have neither sought nor obtained leave to seek any relief against the State defendants and in particular have not sought a declaration that any provision of the Directive has not been properly transposed into Irish law or that any provision of Irish law is inconsistent with the requirements of the Directive. It follows therefore that there is no issue for the court in fact to determine.
11. They make a similar argument with regard to ground (xxvii). They say that the court must first determine whether the actions of the Board were lawful or otherwise permitted by the Irish domestic legislation before any issue regarding transposition of the Directive can arise.
12. The State defendants submit that the applicants have failed to identify any provision of the Directive upon which they rely. They have failed to identify any provision of either the Planning and Development Act 2000 or the Regulations which they say was relied upon by the Board in this case, and which the applicants say did not properly transpose any provisions of the Directive which they have identified as having direct effect. In essence they say the applicants have failed to identify in their pleadings what Ireland is alleged to have done wrong. The pleadings do not therefore disclose a cause of action against the State defendants.
13. They say that the applicants have not complied with the requirements of the rules of court. Order 84, r. 18 requires that an application for leave to seek judicial review must be made in accordance with O. 84. Order 84, r. 20 (3) provides: –
“It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs. (ii) or (iii) of sub rule (2) (a) in assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground”.
14. The State defendants say that the applicants’ proceedings clearly do not satisfy this requirement. Grounds (xxv), (xxvi) and (xxvii) quoted above are vague and not precise. They do not identify in respect of each ground the facts or matters relied upon as supporting that ground as required by r 20 (3).
15. The State defendants also point to the provisions of O. 84, r. 22 (5) which imposes a mirror obligation upon a respondent. It states: –
“It shall not be sufficient for a respondent in his statement of opposition to deny generally the grounds alleged by the statement granting the application, but the respondent should state precisely each ground of opposition, giving particulars where appropriate, identify in respect of each such ground the facts or matters relied upon as supporting that ground, and deal specifically with each fact or matter relied upon in the statement grounding the application of which he does not admit the truth (accept damages, where claimed).”
16. The State defendants submit that the applicants’ pleadings do not permit them to comply with their obligations under r 22 (5).
17. The State defendants refer to the affidavit of Ms. Deirdre Courtney, the applicants’ solicitor, sworn in opposition to the motion on the 2nd May, 2017, and in particular to para. 25 where she avers:
“In the event that the First Named Respondent succeeds and says that it has acted in a manner consistent with Irish Domestic law the applicants may be significantly prejudiced by failing to have the appropriate entity before the Court, namely the Second Named Respondent, who is responsible for and the appropriate person answerable in respect of issues of transposition”.
18. The State defendants argue that it is not appropriate for an applicant for judicial review to seek in effect to hold a party in reserve. An applicant seeking judicial review must bring forward the whole of his case within the time limited by O. 84, r. 23 (1). The conduct of the applicants in this regard effectively circumvents this requirement and amounts to an abuse of the process of the court.
19. The State defendants move the motion on the basis of the provisions of O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court. Rule 28 provides as follows: –
“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just.”
20. Insofar as the State defendants rely upon the provisions of O. 19, r. 28, they submit that the pleadings disclose no cause of action against the State defendants. No relief has been sought against them. It is not possible to discern any precise allegation of wrongdoing maintained against them in the proceedings. They rely upon the well known decision of Barry v. Buckley [1981] I.R. 306 as authority that if the pleadings do not disclose a cause of action, then the court may dismiss the proceedings.
21. In addition, they rely upon Barry v. Buckley as authority for the proposition that apart from O. 19, the court has an inherent jurisdiction to stay or strike out proceedings to ensure that an abuse of the process of the courts does not take place. If proceedings are frivolous or vexatious, they will be stayed and if it is clear that the plaintiff’s claim must fail they will also be stayed.
22. They state where no relief at all is sought against a party they are not necessary to the proceedings and in that sense the maintenance of the proceedings against the party constitutes an abuse of process or, in the language of the case law, the proceedings are frivolous or vexatious.
23. The State defendants relied upon the decision of Lowes v. Coillte Teo (Unreported High Court, Herbert J., 5th March 2003) as authority for the proposition that an application to dismiss a claim as an abuse of process may properly be brought in respect of an application for judicial review where leave to bring the proceedings has already been granted. At p. 28 of the judgment Herbert J. stated: –
“The fact that the leave to apply procedure provided by Order.84 Rule 20, “is designed so as to ensure that cases which are frivolous, vexatious or of no substance cannot begin”, [per Kelly J. in O’Leary v. Minister for Transport Energy and Communications (2000) 1 ILRM., 391 at 397], does not apply because such leave has been granted an arguable case must be presumed to have been established by the Applicant so that an application to set aside the leave given and to dismiss or stay the proceedings could not thereafter be properly entertained. [Toma Adams & Ors v. Minister for Justice, Equality and Law Reform, Ireland and Attorney General (2001) 2 ILRM., 452, Supreme Court]. Other than in exceptional circumstances applications for leave to seek judicial review are made ex parte. Occasions will undoubtedly arise, particularly where issues of fact are concerned, where the basis for an application to set aside the leave given and to strike out or to stay the Judicial Review proceedings as an abuse of the processes of the Court will become apparent only when the Respondent has an opportunity of being heard, and without any suggestion of a failure on the part of the Applicant for leave to seek Judicial Review to make full and frank disclosure to the Court in the course of the ex parte application of all material facts and law. The fact that an Applicant has been given leave to seek Judicial Review does not in my judgment impose a standard of proof greater than the ordinary civil standard on a respondent seeking to have Judicial Review proceedings dismissed or stayed as an abuse of the process.”
They say it is clear form this passage that the court has jurisdiction to grant the relief sought by the State defendants despite the fact that these are judicial review proceedings and that the applicants have been granted leave to seek judicial review in terms of their statement of grounds and that this is an appropriate case in which to exercise that jurisdiction to avoid an abuse of the process of the court by continuing proceedings against a party in respect of whom no relief is sought.
The Submissions of the Applicants
24. The applicants submitted that the fact that leave to seek judicial review had been granted was a complete answer to the motion of the State defendants. They emphasised that leave had been granted not merely to seek judicial review but to seek judicial review pursuant to the provisions of ss. 50 and 50B of the Planning and Development Act 2000. This required the applicant to satisfy the High Court that it had raised substantial grounds and that the applicants had a substantial interest in the proceedings. This was a high threshold which the applicants had satisfied in this case.
25. It was submitted that in those circumstances, it could not be said that the pleadings failed to disclose a cause of action or that they were frivolous or vexatious or bound to fail. It was submitted it would be improper even to “engage with the findings of the court already made”.
26. It was submitted that it was perfectly legitimate for the applicants to raise the issue of the transposition of the Directive into Irish law in the manner in which they did. They would be criticised if, at the hearing of the application for judicial review, they sought to challenge the proper transposition of the Directive into Irish law if the Sate defendants were not made parties to the proceedings.
27. They emphasised that the jurisdiction to strike out proceedings, whether pursuant to O.19 r. 28 or pursuant to the inherent jurisdiction of the court, should always be exercised very sparingly and with great caution and only when it was very clear that the proceedings were bound to fail. They referred to Mark De Blacam, Judicial Review, 2nd Ed. (Dublin, 2009) to the effect that relief under O. 19, r. 27 or 28 is less likely to be invoked in judicial review proceedings since the applicant must obtain leave before the making of his application. They noted that in O’Connell v. the Environmental Protection Agency [2001] 4 IR 494 the court refused to strike out proceedings against the Environmental Protection Agency citing the difference between judicial review proceedings and other proceedings which may be issued without obtaining the leave of the court.
28. The applicants submitted that the fundamental error which arose in this case was that An Bord Pleanála conducted an Environmental Impact Assessment that was far greater in scope than the planning permission actually applied for. The applicant had applied to develop the wind farm and notices in respect of the development related to that application for planning permission. When considering the matter, the Board required the second notice party to submit further information in relation to the proposed options for connecting the wind farm to the grid and conducted an EIA in relation to those proposals in addition to the actual development in respect of which planning permission was sought.
29. The applicants argue that this was impermissible and ultra vires. The notices to members of the public including the applicants related to the application for planning permission and not to the wider subject matter of the EIA. If this was impermissible under domestic law, then the decision of the Board was ultra vires. If the approach was permitted by domestic law, then the applicants submit that this deprives them of the notice to which they are entitled under the provisions of the Directive and therefore it must follow that the State has failed properly to transpose the Directive into national law.
30. The applicants argue that these and other arguments which they say flow from the difference between the application for planning permission and the scope of the EIA conducted by the Board are substantial arguments and are not frivolous and vexatious and are not bound to fail.
31. The applicants submit that they have sought relief against the State defendants in paragraphs 4 (i) and (ii) of the Statement of Grounds and therefore the submissions of the State defendants are incorrect insofar as they say no relief has been sought.
32. The applicants deny that they have in their pleadings failed to comply with requirements of O. 84, r. 20 (3) or that the State defendants would not be able to plead their grounds of opposition in compliance with the requirements of O. 84, r. 22 (5).
33. Finally, the applicants submit that the State defendants, had they wished to pursue the argument advanced by this motion, ought properly to have brought an application to set aside the leave that was granted by Noonan J. They submit that had such an application been brought, then the State defendants would have had to satisfy the court that it was appropriate to set aside the leave that has been granted and it was not permissible to adopt the alternative approach of the State defendants in the circumstances.
Discussion
34. The applicants’ fundamental argument that the order granting them leave to seek judicial review is determinative of this motion is not correct. If it is open to a party to seek to set aside a grant of leave to seek judicial review, as was submitted by the applicants, then it follows that it cannot be improper to “reengage with the findings of the court already made” as was submitted by the applicants. If it is permissible to do so – for the purposes of setting aside the grant of leave – it must likewise be permissible for the purpose of dismissing a claim that discloses no cause of action, is bound to fail, is frivolous or vexatious or an abuse of process.
35. Secondly, Lowes v. Coillte Teo is clearly authority for the proposition to the contrary. Further support for this authority is to be found in a book of authorities handed in to the court on behalf of the Sate defendants. Two cases were submitted to the court where Clarke J. and Irvine J. each in the High Court, dismissed judicial review proceedings brought pursuant to s. 50 of the Planning and Development Act, 2000 (as amended). In Ryanair Ltd v. An Bord Pleanála [2008] IEHC 1 Clarke J. held that the court had jurisdiction to entertain an application to dismiss or strike out the judicial review proceedings brought by the applicant seeking to quash a decision of the respondent to grant a planning permission for the development of a second terminal at Dublin Airport.
36. In Connolly v. An Bord Pleanála [2008] IEHC 224 the notice party brought an application to dismiss the judicial review proceedings. The applicant submitted that the procedure adopted by the notice party in this regard was irregular. He contended that the court did not enjoy the requisite jurisdiction to dismiss the judicial review proceedings. Irvine J. rejected this submission. At p. 15 of the judgment she stated: –
“Whilst applications which are brought seeking to invoke the court’s inherent jurisdiction are normally brought by a defendant in the context of plenary proceedings issued by a plaintiff, there is no reason to believe that this fact in any way precludes a court considering a motion such as the present one brought by the notice party to dismiss judicial review proceedings which he states are an abuse of the court’s jurisdiction …”
37. I am satisfied that each of these cases establishes that the court had jurisdiction to deal with the motion to dismiss judicial review proceedings even in circumstances where leave to seek judicial review has previously been granted. It follows logically that if a motion may properly be brought seeking to dismiss the proceedings, then the grant of leave in and of itself cannot be determinative of the issue. This was confirmed by Herbert J. in Lowes. In O’Connell v The Environmental Protection Agency, the court did not hold to the contrary, which is not surprising as the judge in that case was Herbert J. also.
38. It seems to me that the applicants’ submission is based on a misconception of effect of the grant of leave to seek judicial review. While of course it is necessary for the applicant to satisfy the court that he can advance substantial grounds and the court may only grant leave to seek judicial review where the court is satisfied that the applicant has made out such substantial grounds and that the applicant has a substantial interest in the proceedings, this does not amount to a finding of the court. On the contrary, the court is precluded from making any finding on an application for leave.
39. Insofar as the applicants were obliged to satisfy the court that they had a substantial interest in the application in order to obtain leave to seek judicial review, this does not assist the applicants in responding to this motion. The issue of a substantial interest does not go to the merits of the case, but to the standing of the applicant. It in no way addresses the question as to whether or not the pleadings fail to disclose a cause of action or are frivolous or vexatious or are bound to fail.
40. Even if it were the case that the court was somehow obliged to treat the order granting leave to seek judicial review as deciding that the proceedings were neither frivolous nor vexatious nor bound to fail, the order in this particular case does not assist the applicants. By reason of their own pleadings, Noonan J. did not in fact give the applicants leave to seek any relief against the State defendants. Therefore the argument that the order of the 20th February, 2017, precludes an argument that the pleadings disclose no cause of action or are frivolous or vexatious or are bound to fail is nihil ad rem.
41. It is noteworthy that the applicants advanced no explanation as to why they did not seek any relief expressly against the state defendants. It was open to them, had they so wished, to have sought declaratory relief to the effect that the Directive had not been properly transposed into Irish law, if that was the case which they wished to advance. Of course, such a case would have to be properly pleaded in accordance with the requirements of O. 84, r. 20 (3). In addition, it would have to be pleaded when the leave application was moved and to have been within the time limited for bringing judicial review proceedings. No explanation was provided to the court as to why the applicants did not seek to identify any provisions of either the Directive or Irish statute law or regulations upon which they wish to advance their case that Irish law had failed properly to transpose the Directive.
42. It appears that the applicants wished to reserve their position to see what position was adopted by the Board. Once the Board had clarified its position then the applicants would respond. This was made clear in the letter of the 20th March, 2017, which I have quoted above. They stated that “… the extent to which any such domestic law provision appropriately transposes the requirements of the Directives must be reviewed …” once the Board has made clear which if any provision of domestic law it may rely upon. It expressly stated that the issues will become clearer when these statements of opposition and replying affidavits are filed.
43. The implications of the letter are inescapable. The applicants wish to finalise their case in relation to the alleged or possible failure properly to transpose the Directive into national law when they have received opposition papers from the Board. This is clearly impermissible and contrary to the rules of court. The applicants are required to advance the case they wish to make in full in the statement of grounds. They must do so within time. Leave to amend their statement of grounds must be specifically sought and the permission granted pursuant to O. 84, r. 23 (2). The rules cannot be implicitly circumvented.
44. In my opinion, the proceedings in fact seek no relief whatsoever against the State defendants, notwithstanding the attempt of the applicants to argue to the contrary. Therefore, the continued maintenance of these proceedings against these respondents is vexatious and amounts to an abuse of process. On the pleadings as they stand, even if the applicants were to succeed entirely in the case they have advanced to date, no relief could be granted against the State defendants. It follows inescapably in my opinion that the proceedings fail to disclose a cause of action on their face within the meaning of O. 19, r. 28.
45. While it is not necessary for the purpose of my decision, I wish to record that I agree with the submissions of the State defendants based upon O. 84, r. 20 (3) and 22 (5), though this does not form part of my decision.
46. While I am of course aware that the jurisdiction to dismiss a case on the basis of O. 19, r. 28 or the inherent jurisdiction of the court should only be exercised sparingly and in the clearest of cases, this is a case where it is appropriate to exercise the jurisdiction. The continuance of these proceedings against the State defendants is an abuse of process for the reasons I have identified. Accordingly, I dismiss the proceedings against the State defendants on the basis of O. 19, r. 28 and separately on the basis of the inherent jurisdiction of the court.
Cases Old Default Permissions
O’Connor’s Downtown Properties Limited v. Nenagh Urban District Council
[1993] 1 IR 1
Respondent
[1991 No. 221 J.R.]
High Court 22nd September 1992
O’Hanlon J.
22nd September 1992
The applicant is a limited company carrying on a retail grocery and supermarket business in the town of Nenagh, County Tipperary. The principal of the firm is Joseph O’Connor who has been in the business in Nenagh for 50 years and upwards. The place of business has at all relevant times been located at Kenyon Street, one of the main streets in Nenagh, but in recent years by reason of structural considerations affecting the original property at 69, 69A and 70 Kenyon Street at the junction of Pearse Street and Kenyon Street, a decision was taken to move to better premises further along Kenyon Street and close to the junction with Abbey Street. The premises acquired for this purpose were known as the Old Garda Barracks and it has been necessary to carry out extensive works of alteration and refurbishment to make them suitable for use as a supermarket.
This has hitherto entailed the submission of three successive applications for planning permission to Nenagh Urban District Council. The first application, No. 32/2206, received on the 18th October, 1990, was submitted on behalf of the applicant by Eamonn Stafford, building design and cost consultant, of Dungar, Roscrea, and related to the development of a new shop-front and retail shop. In the long-term it is intended that this area will be used to accommodate off-licence sales and other ancillary services, with access to the supermarket proper after one has passed through this section of the premises.
Permission was granted for this proposed development (although referring to the location as “Barrack Street, Nenagh”) on the 15th January, 1991, subject to the conditions set out in the notification of decision to grant permission dated the 14th December, 1990, and it appears that a considerable amount of work has been carried out in reliance on that grant of permission.
A further application for development permission, No. 32/2236, was lodged on the 20th March, 1991, seeking permission to erect an “extension to retail outlet at rere of Kenyon Street, Nenagh”. It related to a large area immediately to the rere of the premises referred to in the first application for planning permission and envisaged opening up the new area for use as a supermarket sales area with the usual display areas and check-out facilities.
In this case the application was again successful and planning permission was granted on the 14th June, 1991, subject to the conditions set out in the notification of decision to grant permission dated the 10th May, 1991.
These facilities were not sufficient for the applicant’s purposes, however, and by application dated the 5th July, 1991, No. 32/2262, planning permission was sought for the construction of “Extension to Retail Outlet” to be located directly behind the supermarket sales area and intended to accommodate meat sales and storage for meat, fruit, vegetables and other products, and staff-rooms. The area involved was given as 391 square metres and the length of road frontage (at rere) as 13 metres.
It is the fate of this third application for planning permission which falls to be determined in the present proceedings.
Notice was given on behalf of the respondent, dated the 17th July, 1991, requiring the applicant to submit, within one month from the date of that letter, the following additional documents and/or particulars:
“1. (a) Provide the developer’s overall and detailed proposals and planning strategy for the foreseeable future for development of the total area of his sites located off Kenyon Street and Abbey Street as outlined in red on the attached map.
(b) Is it the developer’s intention that the entire area of sites as outlined in red on the attached map will be operated as one single unit, with ancillary services? If so, please produce documentary evidence of the legal interest which O’Connor’s Downtown Properties Ltd. has in that site area which was the subject of Planning Permission File No. 32/2206, the Old Barracks, for which ownership was stated to be Joseph O’Connor (Nenagh) Ltd.
2. (a) Provide overall and detailed proposals for compliance with the conditions attaching to Planning Permission File No. 32/2236.
(b) Show how provision was made to comply with the conditions attaching to Planning Permission No. 32/2236 in the layout presented on the Planning Permission application documents for Planning File No. 32/2262.
(c) Provide layout plans showing all proposed retail areas.
(d) Regularise permitted uses of all areas including for example for store on Planning Permission File No. 32/2236.
3. Provide detailed proposals for loading and offloading of service vehicles including proposed access routes from the main streets/roads.
4. Details of all proposed car parking and including (a) details of intentions and strategy relating to the proposed barrier type entrance; (b) layout of all car parking areas, roads and spaces; (c) evidence of ownership of the proposed detached car parking area off Abbey Street; (d) proposed access routes from the main streets/roads, and (e) provide confirmation that the detached area for car parking (off Abbey Street) will not be disposed of or utilised for alternative purposes.”
To this notice Mr. O’Connor replied in person by letters dated the 18th and 19th July, 1991, (with enclosures) in which he gave a response to each of the queries which had been raised. Further correspondence took place concerning the application during the month of August, 1991. It appears that there was some personal contact at that stage between Mr. O’Connor and Mr. Michael John Gaffney, the Planning Officer and Senior Executive Engineer of Planning and Development in Tipperary (North Riding) County Council, about the matter, and according to oral evidence given by Mr. O’Connor he was told by Mr. Gaffney during the early weeks of August, 1991, that the application would be turned down on the following Monday unless he got Messrs. Farah, architects, of Friar Street, Thurles, to submit a new plan showing a radically different layout for the interior of the supermarket, with the check-outs located in the centre of the store and diverting the customers away from Kenyon Street to an exit leading onto a narrow side-street. The “gondolas” or display counters had also to be re-located to accommodate this altered layout.
Mr. O’Connor said that he reluctantly allowed this compromise arrangement to go ahead and a new plan was put in on behalf of the applicant on the 19th August, 1991, prepared by Mr. Farah, and embodying the changes required by Mr. Gaffney. The plan as submitted contains a note which reads as follows: “NOTE: This drawing supersedes the previous layout submitted to the planning authority Nenagh UDC No. N/2262”.
In the course of his evidence Mr. O’Connor also said: “Farah said Gaffney wanted him to submit a complete new application. I said this would give the Urban District Council a complete two months and not to do anything but a new layout plan on Gaffney’s instructions.”
A letter followed from Mr. Farah to Mr. Gaffney on the 27th August, 1991, which read as follows:
“Dear Mr. Gaffney
In connection with the above subject, I would like to confirm that the revised drawing submitted to you on the 19th/08/91 by me is the only valid layout for the Planning Application No. 32-2262.
Dear Sir, your approval will be based on the documents already presented to you after your recommendations have gratefully been observed and applied. Any changes in the layout other than what is submitted to you, is my client’s responsibility, and subject to separate application to the Planning Authorities.
I would like to take the opportunity to thank you for your concern and for your valuable time put in this matter.
Yours faithfully,
Michael J. Farah
BSc Arch. Dip UP.”
On the 16th September, 1991, Mr. A. McCormack, Town Clerk for Nenagh Urban District Council wrote as follows to the applicant:
“Dear Sir,
I refer to previous correspondence in regard to the above and wish to state that proposal for additional car parking is not acceptable due to inadequate accessminimum width requirement 6.5m. Please submit alternative proposals so that the application can be considered further.
Yours faithfully
A. McCormackTown Clerk.”
The applicant’s solicitors replied to this letter by letter dated the 17th September, 1991, contending that the car-parking facilities to be provided by the applicant were more than adequate, without having to be amended in the manner suggested. They followed this up with a further letter dated the 19th September, 1991, to the respondent’s solicitors, and sending a copy of same to the Planning Section, Tipperary (North Riding) County Council. It read as follows:
“Re/ Our clients: O’Connor’s Downtown Properties Limited
Your clients: Nenagh U.D.C.
Dear Sir
We refer to our letter of the 17th inst. concerning the above matter. As you are aware, the decision of the Planning Authority in accordance with the Act should have issued at the latest on the 18th day of September, 1991.
We have been instructed by our client that no decision of the Planning Authority was issued to either our clients or its agent on or before that date. In the circumstances, in accordance with the Act, Planning Permission in respect of the development Ref No. 32/2262 issued in default. As we are sure you are aware, in order that a development of this nature can be completed, considerable borrowings are incurred. It is always a condition of such borrowings that a Certificate of Planning Permission be provided and failure to do so could involve our client in further extra borrowing and penalties.
This letter is to require your clients to provide our clients with a Certificate of Planning Permission immediately in accordance with the Application made and pursuant to the Act.
Failing same, an Application will be made ex-parte to the High Court next Monday for Judicial Review and Mandamus requiring the issue of the Certificate.
We await hearing from you by return, otherwise the application will be made without further notice.
Yours faithfully,
James O’Brien & Co.”
The Urban District Council did not accept, however, that their decision had been foreclosed by lapse of time and proceeded to consider the application on the basis that the statutory two-month period allowed to the planning authority for consideration had initially commenced on the 5th July, 1991, but that the time had been extended by reason of the notice requiring further information issued by the respondent pursuant to the Local Government (Planning and Development) Regulations, 1977, on the 17th July, 1991. It was further contended that the earliest date on which the applicant had complied with the said request for further information (if at all) was the 19th August, 1991, when new drawings were submitted incorporating the respondent’s requirements regarding the layout of the development, and that the respondent had two months from that date within which to make its decision to grant or refuse permission.
Notice was given to the members of the Urban District Council on the 24th September, 1991, by the Town Clerk, that the County Manager had been advised to refuse planning permission for the proposed development at Kenyon Street and Abbey Street and for additional car parking at Abbey Street, and the following reason for refusal was given:
“It is considered that the proposed development is deficient with regard to the provision of adequate car parking facilities, and the consequent on-street parking of cars on Kenyon Street, Abbey Street, Friar Street and in the general area would tend to create traffic congestion and would, thereby, endanger public safety by reason of traffic hazard.
When considering the previous Planning Permission (File Ref. No. 32/2236), the Planning Authority reduced the extent of development as proposed to match available car parking facilities. This proposal would increase demand for car parking without providing the corresponding required increase in car parking facilities.”
This evoked a reply from Mr. Eamonn Stafford, writing on behalf of the applicant, dated the 27th September, 1991, in which he stated as follows (inter alia):
“On behalf of my client, O’Connors Downtown Properties Ltd., I wish to respond to the letter of September 24th 1991 addressed to the members of Nenagh Urban District Council.
The car parking for this development for which permission was granted No. 32/2336 amounts to 41 no. carspaces. The services area would reduce this by 14 no. carspaces.
My client has acquired land in the area which would provide 15 no. carspaces. The entrance to this carpark is not acceptable to the planning authority. Further proposals have been submitted in an effort to satisfy the requirements in this regard . . .”
On the 8th October, 1991, Mr. Stafford submitted to the Urban District Council (under protest) a revised plan in relation to Nolan’s Yard (where the additional car parking spaces were to be provided) showing the entrance widened to 6.5 metres, to meet the objections raised by the planning authority. An order was then made by the respondent on the 16th October, 1991, deciding to grant permission for the development referred to in the said application, Ref. No. 32/2262, subject to 11 conditions as therein set forth and this was followed up by a grant of permission subject to the said conditions on the 18th November, 1991.
In the immediate aftermath of that grant of permission the respondent’s solicitors wrote to the applicant’s solicitors on the 25th November, 1991, charging the applicant with failure to comply with the conditions attached to the said planning permission and carrying out developments not authorised under any of the three planning permissions which had been granted.
On the 26th November, 1991, the applicant’s solicitors responded and again took their stand on the claim that the entitlement to planning permission had arisen by default after the expiration of two months from the 18th July, 1991, when a response had been given to the request for clarification of the application. Accordingly, they asserted that their client was not bound in any way by the conditions referred to in the grant of permission emanating from the Urban District Council after that date.
In the present proceedings the applicant seeks an order of mandamus to compel the respondent to issue a certificate of planning permission in respect of the said application No. M 32/2262 of 1991. In its statement of opposition the respondent relies on the notice dated the 17th July, 1991, and pleads that the requirements of the said notice requiring further information were not complied with by the applicant.
With regard to the further drawings submitted on behalf of the applicant on the 19th August, 1991, it is claimed that these drawings complied with the authority’s requirements in respect of the layout of the development but not with the car-parking requirements.
Accordingly, the respondent claims that the necessary clarification of the application did not take place, so as to enable time to run in favour of the applicant, or if it did take place it should not be regarded as having taken place until the 19th August, 1991, when the new plans were submitted.
The law
The time limit within which a planning authority must deal with an application for permission is dealt with in the Local Government (Planning and Development) Act, 1963, s. 26, sub-s. 4 of which reads as follows:
“(4) (a) Where
(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,
(ii) any requirements relating to the application of or made under such regulations are complied with, and
(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,
a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period.
(b) In paragraph (a) of this subsection ‘the appropriate period’ means
(i) in case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the planning authority of the application within the period of two months beginning on the day on which the notice or notices has or have been complied with,
(ii) in case a notice referred to in subsection (3) of this section is published in relation to the application, within the period of two months beginning on the day on which the notice is first published,
(iii) in any other casewithin the period of two months beginning on the day of receipt by the planning authority of the application.”
These provisions have been construed in a number of judgments under the Planning Acts, 1963-1990, the most relevant decisions for the purposes of the present application appearing to be The State (Conlon Construction Limited) v. Cork County Council (Unreported, High Court, Butler J., 31st July, 1975) and The State (N.C.E. Limited) v. Dublin County Council (Unreported, High Court, McMahon J., 4th December, 1979).
It is also necessary to have regard to the terms of the Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), as amended by the Local Government (Planning and Development) (Amendment) Regulations, 1982 (S.I. No. 342). Articles 26 and 27 read as follows:
“26. (1) Where a planning authority receive a planning application they may by notice in writing, require the applicant to do any one or more of the following:
(a) to submit such further particulars, plans, drawings or maps as may be necessary to comply with these Regulations or as they may require;
(b) to provide not more than two additional copies of any plan, drawing or map submitted;
(c) to submit any further information relative to the application (including any information as to any estate or interest in or right over land);
(d) to produce any evidence which they may reasonably require to verify any particulars of information given by the applicant in or in relation to the application.
(2) A planning authority shall not require an applicant who has complied with a requirement under sub-article (1) to submit any further particulars, plans, drawings or information save as may be reasonably necessary to clarify the matters dealt with in the applicant’s response to the said requirement or to enable them to be considered or assessed.
(3) Where an applicant fails or refuses to comply with any requirement under this article within one month of such requirement, the planning authority may, if they think fit, determine the application in the absence of the particulars, plans, drawings, maps, information or evidence specified in the requirement.
27. Where a planning authority, having considered a planning application, are disposed to grant a permission or an approval subject to any modification of the development to which the application relates, they may invite the applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of the said development and, in case such plans, drawings or particulars are submitted, may decide to grant a permission or an approval for the relevant development as modified by all or any such plans, drawings or particulars.”
In The State (Conlon Construction Limited) v. Cork County Council (Unreported, High Court, Butler J., 31st July, 1975) what was relied upon by the County Council to halt the running of the two-month period against the planning authority was a letter of the 18th May, 1973, in which the applicant was told that the application was unacceptable regarding layout and proposal for disposal of effluent. Details were given of the proposals objected to and an indication was given of the revision of plans which would be required to satisfy the requirements of the planning authority. An enquiry was also made regarding the title of the applicant to the property.
Butler J. commented as follows, regarding this aspect of the case:
“The second point is whether the letter of the 18th May, 1973, amounts to a notice requiring the applicants to give further information or to produce evidence in respect of the application so as to stop the period of two months running. Again in my opinion, it does not. The Council clearly disliked the proposal but equally clearly they understood it and in all its details. Indeed, it was this understanding which bred their dislike. The letter does not indicate that they lacked any information, explanation or evidence necessary for them to decide upon the merits of the application on the planning grounds and the one request for information it contains relates to the conditions under which the applicants had purchased the site. While an applicant’s lack of interest in the site maybe relevant, once it is acknowledged that he has that interest, as in the present case, the nature of or conditions under which the interest arose are not considerations relating to the proper planning and development of the area and to these alone are the authority confined. It follows that since the application was not refused within the period of two months and since the running of that period was not interrupted by the service of a relevant notice under the section the obligation under sub-s. 9 arose for the Council to make the grant of permission.”
McMahon J. reached a similar conclusion in the circumstances which arose for consideration in The State (N.C.E. Limited) v. Dublin County Council (Unreported, High Court, McMahon J., 4th December, 1979). After the application for approval had been received by the planning authority a letter was written to the applicant on the 26th January, 1979, in which three issues were raised. The access shown on the plans onto the Lucan/Clondalkin road was criticised on a number of grounds and was said to be of a character which would endanger public safety by reason of a traffic hazard. The applicant was asked to clarify if the proposed access and related obstructions could be amended in order to provide safe access to the proposed development.
Secondly, gradients shown on traffic lanes in a car park area were said to be too steep, and the applicant was asked to “clarify” if they could be reduced to more satisfactory levels.
Thirdly, the existing surface water sewer system was said to be inadequate and the applicant was asked to “clarify” if an alternative system could be provided.
McMahon J., in granting an order of mandamus in favour of the applicant, observed as follows:
“It is quite clear from this letter that the Council was not seeking any elucidation from the developers of their plans or that it lacked any information, explanation or evidence necessary for it to decide upon the merits of the application on planning grounds. The letter states the features of the proposal which the Council dislikes and asks the developer to alter his proposals to meet the objections. As Mr. Justice Butler pointed out in the case referred to above [ The State (Conlon Construction Limited) v. Cork County Council ]:
‘It is perhaps understandable that a planning authority may wish to avoid a formal refusal which would give rise to these rights and at the same time to indicate that they disapprove of an application but would be prepared to consider it in a modified form. That is all the letter of the 18th May amounts to and the Act provides no such half-way house.’
In my opinion the letter of the 26th January, 1979, did not amount to a valid notice requiring the developer to give further information or to produce evidence in respect of the application so as to stop the period of two months running.”
Conclusions
Having regard to the correspondence which took place between the parties in the present case I am left with the impression that after Mr. O’Connor had sent his letters of the 18th and 19th July, 1991, with the enclosures therein, to the respondent, and after his solicitors had written on the 18th July, 1991, to confirm the title of the applicant to the relevant properties, only two significant issues remained to be resolved between the parties in connection with the application for planning permission. These referred to the internal layout of the proposed premises comprising the developments referred to in the three successive applications for planning permission, and secondly, to the question of car parking facilities to cope with the traffic expected to be generated by the new trading centre.
A number of other matters were referred to in a letter to the applicant by the respondent’s acting town clerk on the 1st August, 1991, but these appear to have been dealt with to the respondent’s satisfaction by a letter of the 7th August, 1991, from Mr. Stafford, and a further letter of the 8th August, 1991, from Mr. O’Connor, as they were not raised again in subsequent correspondence.
When the issue of the internal layout of the supermarket premises had been resolved by the submission of the modified plans prepared by Mr. Farah after consultation with Mr. Gaffney, it left alive the problem of car parking facilities. The respondent was not satisfied with the additional car parking to be provided at Nolan’s Yard because of the narrowness of the entrance and this remained a bone of contention between the parties until after the judicial review proceedings were initiated. On the 17th October, 1991, notice was given of the decision of the respondent dated the 16th October, 1991, to grant development permission subject to a number of conditions which included a stipulation that an entrance 6.5 metres in width was to be provided to the said car park at Nolan’s Yard.
It appears to me that all the clarification needed by the respondent to enable it to decide for or against the application had been achieved prior to the 16th August, 1991, and that the “appropriate period” of two months referred to in the Act of 1963 had expired prior to the making of the decision of the 16th October, 1991. What was taking place from approximately the 9th August, 1991, onwards, was the formation by the planning authority’s officials of the view that the application in its original form was unacceptable to them on two principal grounds,
having to do with the internal layout of the proposed business and the adequacy of car parking facilities, and the making of further proposals by the applicant in an effort to meet these objections.
The first problem was effectively solved by the applicant putting forward revised layout plans in mid-August, and the second problem was also addressed in a reasonable manner by the applicant taking steps to ensure that the entrance to Nolan’s Yard could be widened to the extent required by the planning authority. However, the application did not at any time become a new application – it was still the application bearing reference No. 32/2262, but with modifications of the original plans. An indication by a planning authority wishing to avoid a formal refusal but at the same time indicating that they disapprove of an application but would be prepared to consider it in a modified form constitutes the”half-way house” which Butler J. and McMahon J. considered to be outside the purview of the Act of 1963 when time is running against the planning authority.
In these circumstances I am of opinion that the decision of the respondent made on the 16th October, 1991, to grant permission on the conditions therein referred to, was made outside the time prescribed by the Act of 1963 and that the applicant is entitled to the relief sought in these proceedings by way of mandamus directing the respondent to grant permission on foot of the application for permission as presented on behalf of the applicant.
However, I am satisfied that the original application was modified by agreement between the parties to enable the applicant to substitute the plan referred to in Mr. Farah’s letter of the 27th August, 1991, for the plan originally submitted, as the plan on which the grant of permission is to be based, and this would include the new internal layout of the business premises.
I think the appropriate order which should be made to give effect to these findings is as follows:
(1) An order of certiorari to quash the decision of the respondent dated the 16th October, 1991, and the order made pursuant to the said decision, granting planning permission subject to conditions, made on the 18th November, 1991.
(2) An order declaring that the respondent having failed to give notice to the applicant of its decision in relation to Planning Application No. 32/2262 within the appropriate period, as provided by the Local Government (Planning and Development) Act, 1963, s. 26, sub-s. 4, shall be regarded as having
given permission for the development referred to in the said application on the 9th October, 1991.
(3) An order of mandamus directing the respondent to grant permission on foot of the said decision, for the carrying out of the development referred to in the said application No. 32/2262, in accordance with the revised plans lodged in relation thereto in the month of August, 1991, by Mr. Farah, acting as architect for the applicant in relation to extension of retail outlet at Kenyon Street, Nenagh, for which planning permission has already been granted, ref. No. 32/2236, and otherwise as provided in the said application.
I would have some reservations about the entitlement of a planning authority to dictate to a developer concerning the internal layout of shop premises, (particularly in an area not covered in the present application), as appears to have occurred in the present case, having regard to the description of such works as “exempted developments” for the purposes of the Act of 1963, in s. 4, sub-s. 1 (g) thereof. However, as change of user is involved and some degree of overlap between the permission now sought and that for which permission was obtained in the two earlier applications the matter is complicated by these factors and accordingly it is not necessary for me to deal with it further in these proceedings.
I reserve the right of both parties to apply if the need arises in relation to this judgment and the orders to be made thereunder.
The State ( Alf-A-Bet Promotions Limited) v Bundoran Urban District Council
High Court
6 May 1977
[1977 No. 103SS]
[1978] 112 I.L.T.R. 9
McWilliam J.
This is an application to make absolute a conditional Order of Mandamus directed to the Bundoran Urban District Council (hereinafter described as the Council) commanding the Council to grant planning permission to Alf-A-Bet Promotions Limited (hereinafter described as the Company) in respect of an application for such permission made by letter dated 26th February, 1974. The Company claims to be entitled to the grant of permission by reason of the failure of the Council to give notice within the requisite period of its decision to grant or withhold such permission.
Sub-section (1) of section 26 of the Local Government (Planning and Development) Act, 1963, provides as follows:—“Where (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and (b) any requirements relating to the application of or made under such regulations are complied with, the authority may decide to grant the permission or approval subject to or without conditions or to refuse it; and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in sub-section (2) of this section.”
Sub-section (4) of section 26 provides at clause (a) as follows:—Where—
(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,
(ii) any requirements relating to the application of or made under such regulations are complied with, and
(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period, a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period.
Paragraph (b) of sub-section (4) in so far as relevant provides “In paragraph (a) of this sub-section ‘the appropriate period’ means—(i) in case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the planning authority of the application—within the period of two months beginning on the day on which the notice or notices has or have ben complied with, (iii) in any other case—within the period of two months beginning on the day of receipt by the planning authority of the application” Clause (ii) *13 of this paragraph is not relevant to the present proceedings.
With the present application for an order of mandamus is associated an application by the Council to restrain John Coyle, who is in effective control of the Company, from continuing the execution of certain works at the rere of the premises to which the application for the order of mandamus relates, on the ground that no planning permission for such works has been obtained, Although I have not been asked to give a decision on this application at the moment, the papers have been put before me and certain aspects of the application have been referred to as relevant to the application for the order of mandamus.
The circumstances of the present application are as follows:— In November, 1973, John Griffin, John Coyle, Jim Gorman and Bernard Drummond decided to go into business in what may be described as the “amusement arcade” line in the seaside town of Bundoran. For this purpose they proposed to purchase a premises in the Main Street which beonged to Irvine John Hamilton and to form a company to be known as Alf-A-Bet Promotions Limited, A contract to purchase was entered into on 28th November, 1973, with Irvine John Hamilton. John Griffin signed this contract as purchaser in trust. Instructions for the formation of the Company were given in January, 1974.
From this stage the progress of the enterprise became much less smooth, and some of the irregularities by both parties in dealing with the matter have led to the present proceedings.
For whatever reason, the Company was not incorporated until 28th October, 1976. Notwithstanding this, Messrs. M. A. Doherty & Associates, Architects, wrote to the Council’s Town Clerk on 26th February, 1974. My attention has been drawn to some features of this letter as being relevant to the proceedings. The reference at the top of the letter refers to “change of use of premises, for Messrs. Alf-A-Bet Limited, Secretary Jim Gorman. Although the purpose of the letter is clear, no actual application of any sort is made; Alf-A-Bet is stated to be the owners of the property; the second paragraph of the letter contains detailed statements of alterations proposed and, by reference to the plans submitted, indicates some form of development proposed for the future at the rere of the premises.
The statutory notice in the window was in the following terms:—
“LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT, 1963.
Application is being made to Bundoran District Council by Messrs. Alf-A-Bet Limited, Jim Gorman, East End, Bundoran, for permission to change the use of this building to an amusement arcade and make alterations necessary.”
On 18th April, 1974, a certificate for the issue of a gaming licence was granted at Ballyshannon District Court in spite of opposition by the Council. Subsequent applications were not opposed by the Council. The original application appears to have been made in the name of James Gorman and the subsequent applications in the name of John Coyle.
On 22nd April, 1974, a letter dated 19th April, 1974, (a Friday) from the Town Clerk’s office was posted to Mr. Irvine Hamilton, Main Street, Bundoran, referring to “your application” for permission in respect of development and requesting certain information as set out in the schedule to the letter.
If this notice was adequate it would have postponed the operation of section 26 (4) (a) (iii) until it had been answered under the provisions of section 26 (4) (a) (ii) and Regulation 11 of Statutory Instrument No. 221 of 1964.
No copy of this notice or any similar notice was sent to the architects or to Jim Gorman or to Alf-A-Bet at this time.
Immediately after a telephone conversation between the architects and the Town Clerk’s office on 3rd May, 1974, a letter of this date similar to the letter sent to Irvine Hamilton was sent from the Town Clerk’s office to the architects and to Mr. Jim Gorman (Secretary) Alf-A-Bet, Bundoran. It is accepted that the telephone conversation of 3rd May, 1974, was initiated by the architects by way of inquiry as to the progress of the planning application and not as a result of having received the letter addressed to Irvine Hamilton.
At some stage round about this time, some alterations were done to the premises in accordance with the plans submitted and the premises were opened and operated as an amusement arcade in the summer of 1974. Further work was done to the premises in the winter of 1974/75 and the applications *14 for gaming licences were not opposed and were granted in the subsequent years.
In so far as the application for planning permission by the letter of 27th February, 1974, is concerned, the Company maintains that it was a good and effective application and the Council maintains that it was not.
On 7th January, 1976, the Architects made a further application for planning permission for the reconstruction of return buildings at the same premises in Main Street on behalf of Messrs. Alf-A-Bet, c/o Mr. John Coyle, Station Road, Ballyshannon, (Manager & Secretary). Alf-A-Bet being expressed to be the owners of the property. This proposed development appears to have included a portion of the premises the subject-matter of the original application. It is alleged by the Council that the Company or John Coyle commenced the work proposed for this development before making the application and it is in respect of this work that the Council brings its application for an injunction.
From the foregoing, it would appear that there was a somewhat casual approach to the formalities of an application for planning permission evinced by both parties.
The letter of 3rd May, 1974, from the Council followed by a further letter of 11th June, 1974, requiring a proper application to be made, but no further step in regard to the application appears to have been taken by either party until the issue of these proceedings.
On behalf of the Company it has been argued that the provisions of section 26(4) apply and that permission must be regarded as having been given.
It is reasonable to assume that the letter of application of 26th February, 1974 was received on 27th February, 1974. Thus the appropriate period within the meaning of subsection (4) would be 27th April, 1974. Thus the end of the appropriate period within the meaning of sub-section (4) would be 27th April, 1974. Accordingly, the letter to Irvine Hamilton was sent within this period and the letter to the Architects and Jim Gorman was outside it.
On behalf of the Council it is argued that, at the time of the application of 26th February, 1974, there was no company, either Alf-A-Bet Limited or Alf-A-Bet Promotions Limited in existence, that there is still no company Alf-A-Bet Limited in existence, that the application was made on behalf of a non-existent person, that it was made on behalf of a person who had no interest in the property and I was referred to Frascati Estates v. Walker [1975] I.R. 177, that the title or heading on the letter of application showed that the application related only to change of use and not to alterations or development, that the letter of 19th April, 1974, being within the two month period was sufficient to prevent the operation of clause (a) of subsection (4) of section 26 although the letter was sent to the wrong person by mistake and I was referred to the case of Norfolk County Council v. Secretary for the Environment [1973] 3 All E.R. 673, and, finally, that the Company was not entitled to an Order of Mandamus because section 26 is not mandatory and also because there has been a subsequent application for planning permission which includes part of the premises the subject-matter of this application.
I should here refer to the definition of development contained in section 3 of the Act. Sub-section (1) of that section provides as follows:—“Development” in this Act means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land. It appears to me that the obvious purpose of the Act is to control development so defined, and my attention has not been directed to any provision in the Act giving power to disqualify persons for lack of qualifications or otherwise. The grounds of consideration of applications are set out in subsection (1) of section 26. It does not appear to me that, apart from circumstances so very unusual as those in the Frascati case where the application was not genuine, the actual identity of the applicant is material. Accordingly, provided that the application was made by a person with an interest in the matter, the mere fact that a company was named which had not been formed or was inaccurately or incorrectly named would not of itself be sufficient to render the application invalid although it might lead to consequences relevant to the other matters raised on behalf of the Council.
This really deals also with the point that the application was made on behalf of a person who had no interest in the property. Jim Gorman was one of the group on whose behalf another member of the group, John Griffin, had purchased the property in trust. In his judgment in the Frascati case, Henchy, J., says at page 186 “For my part I have no difficulty in accepting that the choice of *15 the word applicant and the deliberate avoidance of the use of any word or expression to suggest that the person seeking permission should have any legal estate or interest in the property show that the legislature did not intend that possession of such estate or interest should be necessary.” The application by the architects on behalf of their clients was perfectly genuine and I am satisfied that the clients had sufficient interest to support the application.
In so far as any argument can be grounded on the title to the application relating to change of use only, the letter of 19th April, 1974 to Irvine Hamilton and the subsequent correspondence clearly indicate that the Council accepted the application as an application for the development set out in the body of the letter and I do not propose to consider this contention any further.
The next contention on behalf of the Council causes me more difficulty. There was no company called Alf-A-Bet Limited, so no notice could be sent to it. On the other hand, Mr. Jim Gorman’s name and address were given and he was named as secretary and the application was made by architects whose address and telephone number were on the letter of application and who would, undoubtedly, have been well known to the Council’s officials. The letter of application did state that the premises had been purchased from Mr. Irvine Hamilton but this seems hardly a sufficient reason for sending the notice to him and it is hard to understand why the notice was not sent to the Architects or to Gorman or to both. I cannot accept that this notice was, in itself, sufficient, but, so soon as the mistake was appreciated, and without any further delay, a new notice was sent to Gorman and the Council relies very strongly on the decision in the Norfolk County Council case. This was a case in which a council employee inadvertently notified an applicant that he had been granted permission when he had, in fact, been refused it by the Council. The applicant then made a token commencement of the development and the Council moved to stop it. There was no detriment to the applicant and the Court held that the Council was not bound by the mistaken notice and could rely on the actual decision refusing permission. That case was different from the present, in which there has been no decision other than a notional decision due to no step having been taken by the Council within the requisite time, At the same time, I think the principles with regard to mistake and absence of detriment are applicable. But this does not end the matter. Mr. Gorman and his associates ignored the letters of 3rd May and 11th June, 1974, and, having already got a certificate for a gaming licence went ahead with the development in accordance with the plans. Subsequently the main interest in the venture appears to have been acquired by John Coyle and the Company was formed at the end of October, 1976. Until this time no further step seems to have been taken by either party other than the annual applications for gaming licences until the end of 1976 when an extensive structural development not included in the original application was commenced by the Company although no application for permission appears to have been made until 7th January, 1977, and the Council moved immediately and obtained an injunction to restrain it. This development is the subject-matter of the second application before me. This re-activated the original application for permission and the Architects wrote requiring a grant of permission for it on the grounds of default under Section 26 (9) (a) (i). This was refused.
Under all these circumstances, I am of opinion that the Council having made a mistake and having been made aware of it, should have taken some steps to ascertain what was going on and not relied merely on the letters of 3rd May and 11th June, 1974. Accordingly, I am satisfied that the Council is not entitled to rely on this ground either.
On the question of the Company’s right to an Order of Mandamus, I do not see how the original application can be affected by the fact that there is an application for a further development of part of the premises the subject-matter of the original application. The argument on behalf of the Council that the section does not direct the Council to grant permission may be technically correct but, on the view I have taken of the case, the Company is entitled either to a declaration that a decision by the Council to grant the permission is to be regarded as having been given on 27th April, 1974, or to an Order of Mandamus. In view, if a decision to grant permission is regarded as having been given, the Council is bound to grant the permission and I will make the Order sought.
Flynn and O’Flaherty Properties Limited v. The Lord Mayor Aldermen and Burgesses of the City of Dublin
[1966 No. 51 JR]
[1997] 2 I.R.559
H.C.
Kelly J.
19th December 1996
Background
On the 28th July, 1995, the applicant submitted a planning application to the respondent. It sought planning permission for five single storey houses at the Crescent, Beaumont Road, Dublin 9.
The application had been preceded by discussions concerning it which had taken place between representatives of the applicant and the respondent. The background to those discussions was as follows.
The applicant had completed a development at Beaumont Road, known as Collinswood. A pedestrian route existed from that development to Beaumont Road and on it was a strip of open space. Local residents had become concerned at the misuse of that open space by vandals and youths who conducted cider parties on it. It was felt that the construction of additional houses on the strip of open space would improve the situation. Hence the application which was made on the 28th July, 1995.
The application
Once made, the application fell to be dealt with in accordance with the relevant statutory provisions and the regulations in force. Included amongst those statutory provisions was s. 26, sub-s. 4 (a) of The Local Government (Planning and Development) Acts, 1963 to 1993. That subsection provides as follows:
“Where
(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,
(ii) any requirements relating to the application of or made under such regulations are complied with, and
(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,
a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period.”
The expression “the appropriate period” which occurs in the subsection which I have just quoted is defined by para. (b) of the same s. 26, sub-section 4. In so far as it is relevant to this application, the definition is as follows:
“In paragraph (a) of this subsection the ‘appropriate period’ means
(iii) . . . within the period of two months beginning on the day of receipt by the planning authority of the application.”
Neither of the circumstances which are dealt with in sub-paras. (i) or (ii) of para. (b) are relevant to this application.
Needless to say, if the statutory provisions which I have just quoted were the only ones applicable, it would mean that a decision on the applicant’s application would have had to have been made and notice of it given by the 28th September, 1995. If not, the planning authority would be deemed to have granted permission on the last day of that period. In common parlance, such a permission is known as a “default permission”and that is the term which I propose to use to describe such a permission in the remainder of this judgment.
The two month period is not, however, fixed in an absolute fashion because of the provisions of s. 26, sub-section 4 (A). That subsection provides as follows:
“If, but only if, before the expiration of the appropriate period within the meaning of subsection (4) (a) of this section the applicant for a permission under this section gives to the planning authority in writing his consent to the extension by them of that period, the planning authority may extend the period and in case, pursuant to the foregoing, a planning authority make an extension, subsection (4) (b) of this section shall, as regards the particular case to which the extension relates, be construed and have effect in the accordance with the extension.”
In the present case the applicant sought four separate extensions of time in respect of its application to the respondent. Each such application was couched in precisely the same terms. It consisted of a single sentence letter which read:
“We request on behalf of our client, an extension of time up to the [relevant date] for consideration of the above application.”
The last such application sought an extension of time up to the 15th December, 1995, for consideration of the application.
Each application for an extension was granted by the respondent. Each order extending the time was in the same terms. So were the notifications issued by the respondent to the applicant concerning such extensions. It is only necessary to quote from the last of these which is dated the 23rd November, 1995. It reads as follows:
“Dear Sir/Madam,
I am directed by the Assistant City Manager to inform you, that in accordance with s. 39 (f) of The Local Government (Planning and Development) Act, 1976 amending s. 26, sub-s. 4 of the Local Government (Planning and Development) Act, 1963, the planning authority has extended until the 15/12/95 the period for making a decision on this application.
Signed [on behalf of the Corporation of Dublin]
Olive Flanagan, for Assistant City Manager
Date 23rd November, 1995.”
It is accepted that the reference in these notifications to s. 39 (f) of the Local Government (Planning and Development) Act, 1976, was an error and the appropriate statutory provision which should have be cited was s. 26, sub-section 4 (A). Nothing turns on this point.
On the 14th December, 1995, the respondent decided to refuse the planning permission sought by the applicant.
On the following day, the 15th December, 1995, notification of the decision was sent to the applicant’s architects by registered post. The choice by the respondent of this method of communication of their refusal ensured that notice of the decision could not be received by the applicant prior to the 16th December, 1995. It is common case that it was not in fact received until the 18th December, 1995, which was a Monday.
In these circumstances the applicant contends that it is entitled to a default permission because the planning authority did not give notice to it within the appropriate period.
The giving of notice
On the assumption that the 15th December, 1995, was the end of the appropriate period then it appears to me that by choosing the method of communication which it did the respondent effectively ensured that its decision of the previous day would not be communicated to the applicant within the prescribed time.
It is the date of communicaton of the respondent’s decision and not the date of the actual decision which is crucial to the applicant’s case.
In Freeney v. Bray U.D.C. [1982] I.L.R.M. 29 O’Hanlon J. at p. 35 said that he was of opinion that there was an intention on the part of the legislature:
“that planning applications were to be dealt with as matters of some urgency and that there was to be an obligation on the planning authorities to communicate their decisions to applicants within a strict limit of time; and further that it was intended that notice of decisions should reach applicants either personally or at their premises within the period described by the Act as ‘the appropriate period’.”
He went on to say:
“The Interpretation Act, 1937, s. 18, is in ease of the sender of such statutory notice, since it raises a presumption in his favour that the notice has reached the applicant at the time when it would have been delivered to him in due course of post. The onus is thereby shifted to an applicant who asserts that the notice was not given by the planning authority within the statutory period, but if the service was by registered post and he can show that it did not in fact, reach him within the ‘appropriate period’, then I am of opinion that the planning authority must suffer the consequences of resorting to this method of service rather than the more conclusive methods of personal service or service at the premises to which the application relates, or where the applicant resides, or at the address for service which he has given.”
In the present case the respondent served notice by registered post sent on the 15th December, 1995. That, says the applicant, was the last day of the appropriate period. By adopting this method of service the respondent ensured that notice would not be received by the applicant within such appropriate period and consequently the entitlement for default permission is established.
If the last day of the appropriate period was the 15th December, 1995, I am of opinion that the applicant’s case is unanswerable. This is so having regard to the dictum in the judgment of O’Hanlon J. which I have just cited.
The appropriate period
The respondent in the present case says that the 15th December, 1995, was not the last day of “the appropriate period”. Its argument is that the statutory provisions permit of only one extension of time and that therefore after the first extension of time which was to the 27th October, 1995, it was not open to the respondent to extend time further.
The difficulty with this argument from the respondent’s point of view, as I see it, is:
(a) It runs entirely counter to what the respondent actually did in the present case,
(b) it necessarily involves an assertion that the respondent actedultra vires in granting the three further extensions, and
(c) means that a default permission came about as of the 27th October, 1995.
I therefore do not see how it can materially assist the respondent in the defence of these proceedings.
However, in any event, I am of opinion that the respondent’s argument concerning the number of occasions upon which an extension of time can be granted is not correct at law. It appears to me that s. 26, sub-s. 4 (A) expressly refers to the “appropriate period” as that defined in s. 26, sub-section 4 (A). That, in the context of this case, is the period of two months beginning on the day of receipt by the planning authority of the application. Section 26, sub-s. 4 (A) then goes on to permit of an extension of that period and then provides that sub-s. 4 (b) of the section shall,”as regards the particular case to which the extension relates, be construed and have effect in accordance with the extension”. This appears to me to mean that when an applicant makes a request to the planning authority to extend the time for dealing with an application and where the planning authority so consents then the appropriate period is extended for whatever period the planning authority determines since it is they who extend the period in question.
There is nothing in this sub-section to indicate that not more than one extension of the appropriate period can be granted. It seems to me that once the first extension is granted that extends “the appropriate period”.This new extended period is now “the appropriate period” and it in turn can be extended further.
In these circumstances I conclude that the respondent’s defence of these proceedings on this ground is not well founded.
Discretionary relief
I must, however, now turn to the second substantial ground which was raised on behalf of the respondent. It is said, and in my view correctly, that relief of the type which is sought here is discretionary. The respondent contends that in the exercise of my discretion I ought to refuse this application.
I readily accept the reluctance on the part of the courts to declare the existence of default permissions. In Molloy v. Dublin County Council [1990] I.R. 90 Blayney J. said at p. 97 of s. 26:
“The purpose is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicate its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because a permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted. It would seem to be a relatively simple matter to devise some alternative sanction which would achieve the same desirable purpose of having planning applications expeditiously dealt with, but which would not have the same potentially serious consequence for the community in the event of a failure on the part of a planning authority through error or inadvertence to comply with the statutory time limit, and I would hope that the legislature might give serious consideration to this suggestion.”
It appears to me that these observations of Blayney J. have much to commend them. However, I cannot lose sight of the fact that he also said:
“It is with considerable regret that I have arrived at this decision as it means that the plaintiffs are obtaining a planning permission which the defendant, for a number of reasons, considered should be refused. It does not seem reasonable that failure to give notice of a decision within two months should result in the application being automatically granted, but such is the law and I have to apply it. It is only the legislature that can change it and I am strongly of the opinion that they should consider doing so.”
Whilst these quotations may suggest a lack of enthusiasm on the part of the court in relation to applications of this sort nonetheless I cannot ignore what the statute provides and so in an appropriate case the court must enforce it.
The principal point which was made suggesting that the court ought to exercise its discretion against the applicant was the fact that an appeal procedure on the merits was open to the applicant but it chose not to pursue it. Had it done so it could have appealed the decision to refuse permission to An Bord Pleanála within one month of the decision.
In particular, reliance is placed upon the decision of the Supreme Court in Creedon v. Corporation of Dublin [1984] I.R. 428 and in particular the observations of McCarthy J. there. He said at p. 435:
“It was never the intention of the legislature that the mistakes of planning or housing authorities, misconstructions of their powers, misconception of the facts or the like, would be used as a basis for an abandonment of the statutory procedures and the use of the Courts as some form of licensing or enabling authority in a field in which the legislative and executive organs of government have prime responsibility. It is not the function of the judicial arm of government to aid an owner of property who, so to speak, is fortunate enough to have some innocent error made in determining his particular application, and to so aid him as to grant him, in effect, . . . a planning permission which it is the express decision of the relevant authority not to grant. The observations of the Chief Justice and Mr. Justice Walsh in Abenglen [1984] I.R. 381 are highly relevant in, the present application. I am far from suggesting that there has been any improper conduct on the part of the plaintiff, she has merely sought to use what she believed to be a legal advantage that fell into her lap. In my view, to permit such a use is not the function of the Courts . . . in a case such as the present where no allegation of any impropriety, ulterior motive, or anything save a mistake in law, is suggested, in my view, the necessity for the plaintiff to exhaust the statutory remedies is a complete answer to any claim to the discretionary assistance of the Courts . . . there may be a variety of answers to her application for planning permission under s. 26 of the Act of 1963 or there may be very appropriate conditions to be attached to any such planning permission, and the interests of third parties are to be considered. This Court should unequivocally condemn attempts to sidestep the legislative and administrative procedures by recourse to the Courts. I would dismiss the appeal.”
Whilst I have no difficulty in accepting the propositions which were set forth by McCarthy J., I must nevertheless apply the statutory provisions. In my view a complete answer to this objection on the part of the respondents is to be found in the judgment of Blayney J. in Molloy v. Dublin County Council [1990] 1 I.R. 90. There he said at p. 93:
“I reject the submission that the court’s discretion ought to be exercised against the plaintiffs on the ground of their having an alternative remedy in the form of a right of appeal. If the plaintiffs are correct in their contention there was no reason for them to appeal because under s. 26, sub-s. 4 the defendant was to be regarded as having granted to them on the 19th September, 1988, the permission sought. There was nothing to appeal against as they had a decision in their favour. The situation is very different from Creedon v. Corporation of Dublin [1984] I.R. 428 on which counsel for the defendant relied. In that case a decision refusing permission to use premises otherwise than for human habitation had been made and communicated to the plaintiff in an analogous procedure under the Housing Act, 1966, but the decision was made and communicated within the appropriate period so an appeal could have been brought against it in the normal course. Instead of bringing an appeal, the plaintiff claimed a declaration that the order refusing permission was a nullity. The Supreme Court, while finding that the order was invalid, refused to declare that permission had been acquired by default, holding that the necessity”to exhaust the statutory remedies” was “a complete answer to any claim to the discretionary assistance of the courts”. In the present case, however, if the plaintiffs are correct there was no question of there ever having been any situation in which they needed to appeal. Once notice of the defendant’s decision had not been given to them within the appropriate period, the defendant was to be regarded as having granted the permission on the last day of the period so there was no adverse decision against which to appeal.”
In my view, this statement of Blayney J. is entirely apposite to the present case. Consequently, it appears to me that there is no sound basis upon which the respondent can contend that the court here ought to exercise its discretion against the applicant.
Neither do I find anything in the conduct of the applicant to give rise to any form of estoppel which would prevent it from obtaining the relief which it claims.
Conclusion
In my view, the sole and exclusive cause of this litigation was the behaviour of the respondent in leaving until the last day but one the making of its decision and then adopting on the last day of the appropriate period a method of communication of the decision which made certain that the decision would not be communicated to the applicant within the appropriate period. Like O’Hanlon J. in Freeney v. Bray U.D.C. [1982] I.L.R.M. 29, I am of the view that the respondent must suffer the consequences of resorting to the method of service which it did. Had it been timeous in effecting service of the notice this difficulty would not have arisen. The fact that the applicant now has a default permission is, in my view, entirely brought about by the respondent’s own behaviour.
Accordingly, I will declare that the applicant has by reason of the default of the respondent a valid and subsisting planning permission for the erection of the houses in question in accordance with the plans and specifications which were lodged by it with the respondent on the 28th July, 1995.
Garry McGovern v Lord Mayor, Aldermen and Burgesses of the City of Dublin
1997 No. 281 JR
High Court
22 January 1999
[1999] 2 I.L.R.M. 314
(Barr J)
BARR J
delivered his judgment on 22 January 1999 saying: This judicial review arises out of a dispute between the applicant developer and the respondent planning authority regarding an application made on or about 6 December 1996 for full planning permission for a development which was stated to comprise ‘alterations and extension of approved plans for No. 49 Ranelagh Road [Dublin] and for extension to rear of 50 Ranelagh Road. The overall development to comprise a 21 bedroom guest-house’. There is controversy regarding service and subsequent re-service on the planning authority of a particular docu *316 ment (the document) which contains information the furnishing of which would cause time to run against the respondent in the matter of ruling upon the application and notifying the applicant of its decision. S. 26(4) of the Local Government (Planning and Development) Act 1963 (‘the 1963 Act’) provides for planning permission being obtained by default where:
(i) an application is made to a planning authority in accordance with permission regulations for permission under this section …,
(ii) any requirements relating to the application of or made under such regulations are complied with, and
(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,
a decision by the planning authority to grant the permission … shall be regarded as having been given on the last day of that period.
In terms of the instant case ‘the appropriate period’ means two months from service of the document on the respondent’s planning authority. The applicant contends that the document, or facsimile thereof, was lawfully served on the authority on two separate dates and that at latest the time for the respondent’s ruling upon the application expired on 7 May 1997. It is further submitted that in the premises the applicant has obtained permission for his proposed development by default pursuant to s. 26(4) of the 1963 Act; that the permission purported to have been granted by the planning authority dated 27 May 1997 is a nullity and that the order made by An Bord Pleanála on 24 October 1997 pursuant to an appeal brought by objectors to the latter alleged permission is also of no legal effect as it arose out of the respondent’s alleged planning permission which itself was null and void and could not affect a pre-existing valid default permission.
The respondent authority has disputed that the document has been validly served. It contends that time had not run against it and that its planning permission dated 27 May 1997 was granted within time and, subject to the appeal to An Bord Pleanála, had the full force of law.
I am satisfied that it is unnecessary to resolve the foregoing controversy as to whether time had run against the respondent and whether the applicant had already obtained permission by default for his proposed development prior to the purported permission subsequently granted by the respondent’s planning authority subject to conditions specified in its notice dated 27 May 1997. The issue of the planning authority being out of time in considering and ruling upon the application (if such were the case) is dependent upon a fundamental question which is at the heart of this application, i.e. , having regard to the terms of the developer’s application for planning permission on which his case is based and depends was he entitled to rely upon the statutory default provision?
*317
The developer’s application of 6 December 1996 related to a guest-house comprising 21 bedrooms in an area described as having zoning objective A1 in the statutory development plan of 1991 for the city of Dublin. (The correct designation of the area is A2 but nothing turns upon that misdescription). It is alleged by the applicant at paragraph 3 of his original affidavit sworn herein that the relevant zoning permits activities of the type envisaged in his application. Mr Peter Nelson, the respondent’s planning officer who dealt with the application, takes issue with the latter point at paragraph 19 in his replying affidavit. He contends that the relevant zoning does not ‘permit’ the proposed development as alleged because it does not fall within the category of ‘normally permissible’ developments under zoning objectives A1 or A2 as specified in the plan. Unlicensed guest-houses are included in the ‘open for consideration’ category under both zoning objectives. The phrases ‘normally permissible’ and ‘open for consideration’ are defined in the development plan at p. 106 as follows:
Uses as ‘normally permissible’ are generally acceptable in principle in the relevant zones. Uses shown as ‘open for consideration’ are uses which would not be acceptable in principle in certain parts of the relevant use zone and will only be permitted where the planning authority is satisfied that the use would be consistent with the overall objective, not have undesirable effects and would be consistent with the proper planning and development of the area.
It is submitted that ‘open for consideration’ uses are not permitted per se under the plan but require to be accepted by the planning authority in the light of the particular circumstances of each case as being consistent with the proper planning and development of the area, i.e. , such uses are not permitted unless and until specifically authorised by the planning authority or by An Bord Pleanála. In short, it is submitted that unless so authorised no planning permission by default can be obtained in respect of a guest-house development whatever the size of it might be. It was also submitted that in the instant case the applicant’s reliance upon an alleged default permission fails on a further ground in that his proposed development does not come within the definition of ‘guest-house’ in the development plan which is in the following terms:
A building or part thereof where sleeping accommodation, meals and other refreshments are available to residents and non-residents and which has a minimum of five rooms and no more than 19 rooms and contains no licence to sell intoxicating liquor.
In the light of the foregoing it is argued that the development envisaged by the applicant is not a guest-house within the meaning of the development plan and, therefore, is not one which is ‘open for consideration’ within the zoning objec *318 tives for A1 or A2 in the plan.
In response to the foregoing submissions it is argued on behalf of the applicant that the extent by which the application exceeds the maximum number of guest-house rooms is such that in all the circumstances it does not constitute a ‘material contravention’ of the plan. The failure of the planning authority to take any point about alleged material contravention when dealing with the application is relied upon as evidence that the authority does not regard the fact that the application is for 21 bedrooms in the proposed guesthouse as being a significant factor amounting to a material contravention of the plan. In that premise it is argued that the application in question was one for which default permission was obtainable.
Conclusions
As already stated, the net question for determination is this. Having regard to the terms of the developer’s application for planning permission, was he entitled to rely upon the statutory default provision contained in s. 26(4) of the 1963 Act and (if the planning authority was in default thereunder) is he deemed to have obtained permission for the development specified in his application of 6 December 1996?
The statutory time limit imposed on a planning authority to give notice to the applicant of its decision on a planning application has not only potential consequences for the authority and the applicant but also for any objectors to the proposed development if permission for it is deemed to have been granted by default — particularly where it is for a project which is outside the scope of developments specified as ‘normally permissible’ in the relevant development plan. Where default permission is obtained objectors may be unable to challenge the intended development by way of appeal to An Bord Pleanála if permission is not publicised in time for an appeal. In consequence, objectors may suffer significant harm which might have been avoided or ameliorated if they had had the benefit of access to An Bord Pleanála as would be the case if permission had been granted by the planning authority within time. Accordingly, in the interest of justice the scope of the statutory right of a developer to permission by default should be strictly interpreted. In the light of that requirement I am satisfied that the following principles apply:
(1) To justify a right to permission by default under s. 26(4) a developer must establish, inter alia, that the application for planning permission on which he relies is four square within the ‘normally permissible’ categories of development on foot of the relevant zoning objectives in the local authority development plan. In my view the wording of the sub-section implies that a right of permission by default is restricted to an application which in the normal course of events is one which in principle is entitled to succeed.
The types of development ‘normally permissible’ as to zoning objectives *319 A1 and A2 in the City of Dublin plan do not include guest-houses whatever their proposed size may be. Some such user is included in the categories which are deemed to be ‘open for consideration’ by the planning authority. It follows that a guest-house is not a development which is prima facie permissible in the relevant area, but it may be allowed by the planning authority if satisfied that it would be consistent with the proper planning and development of the area. This necessarily entails a positive assessment by the planning authority of an application which is outside the normal confines of the development plan in contrast to the granting of permission for a development which is prima facie within the norm. I am satisfied that a default permission must be confined to the latter. It would be unreal and potentially unjust to others to interpret the sub-section as including not only permission by default for a development which is ‘normally permissible’ under the development plan, but also an implied approval by the local authority of the particular development, without right of appeal, which is not ‘normally permissible’ and where sanction is dependent on the planning authority being satisfied that the proposed use is consistent with the proper planning and development of the area in the special circumstances of the case. The latter if granted by default entails a substantial and potentially far-reaching incursion into the rights and obligations of the authority under the planning code and of possible objectors to the project in question. The grant of permission by default for a development which is ‘normally permissible’ on foot of the relevant plan entails no major encroachment on the rights and obligations of the planning authority.
(2) In the instant case the applicant’s difficulty is compounded by the fact that not only was his application outside the scope of what is ‘normally permissible’ under the development plan, it was also outside the ambit of uses ‘open for consideration’ in that the proposal was for a guest-house comprising more bedrooms than the maximum number which are deemed to be within the definition of a ‘guest-house’ in the plan. For the reasons already stated, I am satisfied that a developer’s right to permission by default under s. 26(4) should be strictly interpreted. The onus is on the developer to establish that prima facie he is entitled on foot of the development plan to the permission for which he has applied. Even if a guest-house was a user for which the applicant was prima facie entitled to a default permission, the proposed development is not a ‘guest-house’ as defined in the plan. There is no basis on which the sub-section might be interpreted as sanctioning the proposed development on the ground that it does not materially contravene the development plan. If it contravenes the plan it is not entitled to default permission. In that regard, the relevant time is the date on which the default permission is alleged to have arisen. The applicant must establish his entitlement as of that date. Whatever may have happened afterwards is irrelevant. As to the permission granted by the planning authority on 27 May 1997; it reduced the number of bedrooms to 16 thus bring *320 ing the permission within the definition of ‘guest-house’ in the plan. Accordingly, the planning authority was under no obligation to bring an application under s. 26(3) of the 1963 Act as amended. That procedure would have been relevant only if the planning authority was disposed to grant permission for a guest-house with more than 19 bedrooms.
In my opinion the developer’s application for planning permission dated 6 December 1996 by reason of its nature was not one for which default permission could have been obtained on foot of s. 26(4) of the 1963 Act even if the respondent’s planning authority had failed to deal with it in time as alleged by the applicant. The end result is that the planning permission granted by the respondent on 27 May 1997 is valid per se and also the order on appeal therefrom made by An Bord Pleanála on 24 October 1997. I note that the applicant contested the appeal albeit without prejudice to his contention that no lawful appeal lay as he perceived that he had already obtained permission by default prior to the formal granting of permission by the planning authority.
(3) It is pertinent to add that the exclusion of the developer’s application for planning permission from the benefit of the default mechanism contained in s. 26(4) for the reasons stated herein did not deprive him of a remedy arising out of delay on the part of the planning authority in dealing with the application. He was entitled to move the court for an order of mandamus in that regard, but in the events which have transpired that remedy does not now arise.
William Murray v Wicklow County Council
1993 No. 5115 P
High Court
12 March 1996
[1996] 2 I.L.R.M. 411
(Barron J)
BARRON J
delivered his judgment on 12 March 1996 saying: The plaintiff is the owner of a dwelling house and lands at Kilcroney in County Wicklow. The eastern boundary of the lands abuts the N11 being the main Dublin to Wexford Road. The southern boundary abuts the road from Enniskerry to the N11. On 6 March 1989 the applicant made an application to the defendant to develop a two acre portion of his lands as a garden centre. The particular portion concerned was on the south-east of his holding and abutted the two roads to which I have referred.
On 15 March 1989 the defendant notified the plaintiff that an insufficient fee had accompanied his application. Notwithstanding this, no additional fee was *413 paid. Nevertheless, on 21 April 1989 the defendant made a decision refusing permission for the proposed development. The reasons for the refusal were set out in a schedule to the notification as follows:
1. The proposed development would be located in an exposed position adjoining the national primary road and would be materially contrary to the objective of a county development plan to restrict developments within 110 metres of the road in the interests of visual amenity and tourism.
2. The proposed development would be contrary to the proper planning of the area which requires that a commercial development in the vicinity of the Bray development area should be confined to the east side of the national primary road in the interests of preserving the distinction between urban and rural areas and in order to avoid the generation of local traffic crossing the primary road. If permitted, the present proposal would set a precedent for further inappropriately situated development.
3. The proposed development would give rise to a serious traffic hazard at the entrance due to inadequate sight-lines at that point.
4. The proposed commercial development would endanger public safety by reason of a traffic hazard because the additional turning movements it would generate at the junction of the national primary road and the county road giving access to the site would interfere with the safety and free flow of traffic on the national primary road.
Following this refusal, the plaintiff appealed to An Bord Pleanála on 16 May 1989. Following notification by the board that the balance of the appropriate fee payable to the defendant was still outstanding and that the board might be precluded from hearing the appeal, the appeal was withdrawn on 12 June 1989. Nothing happened for virtually three years. On 2 June 1992 the fee was paid by the plaintiff who notified the defendant that he intended to pursue his appeal. He also indicated that he would provide the defendant with a full copy of his appeal. On 17 June 1992 the plaintiff was informed by An Bord Pleanála that since his appeal had been withdrawn by letter dated 12 June 1989 that it would be necessary for him to make a fresh application to the defendant and that only if he was aggrieved by any decision of the defendant on such an application, could the board become involved. It appears that the defendant took the view that the notification of 2 June 1992 and the payment of the balance of the appropriate fee on that date should be treated as a fresh application for permission. Whether or not this is a correct interpretation of the views of the defendant, by order dated 31 July 1992 the application was refused. Notification of such refusal did not reach the plaintiff until 5 August 1992.
*414
On these facts the plaintiff claimed that the notification of the decision of 31 July 1992 did not reach him within the two months allowed and that accordingly the default provisions of the statutory code came into effect and that as of 1 August 1992 he became entitled to a default permission for the development indicated on his application. The defendant opposes the application on the following grounds:
(1) That there was only one application before the defendant and that its decision made on 21 April 1989 bars the operation of the default provisions of the Acts;
(2) That similarly the decision made on 31 July 1992 bars the operation of those default provisions;
(3) That even if the decision of 21 April 1989 was invalid because the appropriate fee had not been paid, nevertheless it remained good since it had not been quashed within the two-month period required by the Acts;
(4) That in any event the default permission could not come into existence since the defendant had no authority to grant a permission for a development which would have been a material contravention of its development plan.
The plaintiff’s case depends entirely upon acceptance by the court that a valid application for permission was made to the defendant on 2 June 1992. An application for permission was made on 6 March 1989. It was not accompanied by the appropriate fee. Accordingly, there was a statutory prohibition preventing the defendant from deciding the application: s. 10(2) of the Local Government (Planning and Development) Act 1982. Nevertheless, the defendant made a decision refusing the application.
The plaintiff appealed this decision, but an Bord Pleanála refused to hear it upon the ground that there had been a breach of the provisions of the 1982 Act to which I have referred. As a result, the appeal was withdrawn. At that stage the plaintiff could have paid the proper fee and indicated that he wanted his application to proceed. He did not do so. Instead, he waited three years, paid his fee and sought to continue his appeal. If the defendant had not purported to treat the payment of the fee on 2 June 1992 as the commencement of the two-month period for the purpose of the possibility of a default permission, could the plaintiff have claimed such a permission as of 2 August 1992? I do not think so. An application which is not pursued cannot remain valid indefinitely. Admittedly, there is provision in the relevant regulations for the planning authority to require further publication in cases of delay. But the planning authority has no need to exercise any such power where there is no subsisting application. In my view the application had lapsed. In any event, the plaintiff on 2 June 1992 was not seeking to reactivate his application. He was doing what he thought was necessary to reactivate his appeal. There was no need for the defendant to have done anything following the receipt of the fee. The evidence shows that all that was done was to make the same decision under the same file number as that *415 made three years before.
It seems to me that the defendant was in error in purporting to make such a decision. In Creedon v. Dublin Corporation [1983] ILRM 339 McCarthy J at p. 342 said:
It was never the intention of the legislature that mistakes by planning or housing authorities — misconstructions of their powers — misconception of the facts or the like — would be used as a basis for abandoning the statutory procedures and seeking to use the courts as some form of licensing or enabling authority in a field in which the legislative and executive organs of government have prime responsibility. It is not the function of the judicial arm of government to aid an owner of property who, so to speak, is fortunate enough to have some innocent error made in his particular application, and so aid him as in effect, to grant him a housing permission or a planning permission which it is the express decision of the relevant authority not to grant.
In my view that statement applies equally to the present case.
In Dublin County Council v. Marren [1985] ILRM 593 Barrington J expressed a similar view. Having found that the applicant for planning permission in that case had not obtained a default permission by reason of a failure to comply with the provisions of the permission regulations, Barrington J said at p. 601:
It behoves a person who seeks to obtain a planning permission through the default of the planning authority to be himself meticulous in the observance of relevant provisions of the Planning Acts and the regulations made thereunder.
The failure by the plaintiff to re-advertise and the expression of his intention not to reactivate the application but to reactivate the appeal disentitles the plaintiff to rely upon 2 June 1992 as the date from which the two-month period should have run.
In the circumstances, it is not necessary to consider whether the decision of 21 April 1989 would have been a bar to the relief claimed. No valid application could have existed before that because the fee had not been paid, but in any event once the application lapsed no question of a default permission arising in relation to that application could have arisen.
The real defence on this aspect of the case, based upon the decision in Colgan v. Dublin Corporation High Court 1990 No. 249 JR (Costello J) 19 March 1991 is that the decision of 31 July 1992 barred the possibility of a default permission. I would, however, have taken the view that even if there had been a valid application, the decision of 31 July would have had no validity until notified. As it was not notified before the relevant two-month period, a default permission would have arisen first and so could not have been barred by the unnotified decision. This would be in line with the purport of the passages in both Creedon *416 v. Dublin Corporation and Dublin County Council v. Marren. The sanction of the default permission is to ensure performance by the planning authority of its statutory function. Failure to notify the applicant within time is a failure to perform this statutory function and cannot be regarded as an innocent error.
I believe this view to be supported by implication by Molloy v. Dublin County Council [1990] 1 IR 90; [1990] ILRM 633 and expressly by a passage in the judgment of Henchy J in State (Abenglen Properties Ltd) v. Dublin Corporation [1984] IR 381; [1982] ILRM 590 where he says at pp. 400/604:
S. 26(4) is designed to enable an applicant to be deemed to have got permission by default when, regardless of whether the planning authority have or have not made a decision within the appropriate period, they have failed to give him notice of their decision within the appropriate period.
In my view the decision of 31 July 1992 would not have availed the defendant.
The defendant also submitted that a default permission could not have been given because there was no power in the defendant to grant the permission sought since it would have constituted a material contravention of the development plan. In P. & F. Sharpe Ltd v. Dublin City and County Manager [1989] IR 701; [1989] ILRM 565, one of the issues which arose for determination was whether or not a default permission could arise in a case of material contravention. Finlay CJ said at pp. 720/581:
Having regard to my conclusion that this proposal constitutes a material contravention of the development plan, there can be no question of the planning authority being deemed to have decided to grant permission by reason of the efflux of time because the granting of permission without the passing of a valid resolution pursuant to s. 26(3), would be illegal and outside the powers of the planning authority.
Earlier in his judgment Finlay CJ had already expressed the view that no reasonable opinion could have been formed other than that the particular proposal constituted a material contravention of the development plan. Nevertheless, it seems to me that he was saying that in a case where the power of the local authority to grant a permission has to be considered in the light of a default permission, it is for the court to determine whether or not the application, if granted, would have materially contravened the relevant development plan.
In the present case, the opinion of the planning consultant who gave evidence on behalf of the plaintiff was that the restriction on development contained in clause 3.1.4 of the County Development Plan 1989 whereby lands within 150 yards (137 m) of the N11 were to be maintained free from development related only to housing. This policy is repeated in the second paragraph of clause 4.3.3. The first paragraph of this latter clause refers to commercial exploitation. In my *417 view, it is not reasonable having regard to the overall policy of the plan, particularly in relation to tourism, to construe these several provisions as disallowing housing, but permitting commercial development. On the evidence before me, I am also satisfied that to allow the permission would, by reason of the creation of a traffic hazard, also have been a material contravention of the relevant plan.
Had there been no other ground for refusing relief, I would have held that no default provision could have been obtained because it would have constituted a material contravention of the development plan on the two grounds to which I have referred.
Maye v Sligo Borough Council
[2007] I.E.H.C. 146
JUDGMENT of Mr. Justice Clarke delivered the 27th April, 2007.
1. Introduction
1.1 This case concerns what is commonly referred to as a “default planning permission”. Such permissions arise where there is a valid planning application but the planning authority concerned does not make a decision on that application within the time required by statute. The subject of default planning permissions has been both legally and generally controversial over the years. On a number of occasions the courts have pointed out that the default mechanism has the potential to punish not the planning authority who has failed to make a decision in time, but rather those members of the public who may have opposed the planning permission (or sought that it be limited in some material way) and who do not get the benefit of having a decision made on the merits of their objections.
1.2 As Blayney J. stated in Molloy v. Dublin County Council [1990] I.R. 90:-
“The purpose (of the default provisions) is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicates its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because of permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted”.
1.3 O’Flaherty J. made comments to similar effect in Burke v. Westmeath County Council (Unreported, Supreme Court, O’Flaherty J., 18th June, 1998).
1.4 Notwithstanding those comments, the Oireachtas decided in 2000 to retain the regime for default planning permissions in a more or less unaltered way when enacting the Planning and Development Act, 2000 (“the 2000 Act”). The 2000 Act was, of course, a consolidation measure designed to bring together all existing planning laws into one piece of legislation and, where appropriate, to modify those laws in the light of experience. In conducting that exercise the Oireachtas was clearly not persuaded that it was appropriate either to abolish entirely or amend significantly the regime in respect of default permissions. Against that background I have to consider the case made by the applicant (“Mr. Maye”) to the effect that he is entitled to such a default permission on the facts of this case.
2. The Facts
2.1 At present there is an existing pub, nightclub and dwelling on a site at Crozon Crescent, Riverside, Sligo which comprise premises known as “The Blue Lagoon”. The site appears to be just over one third of a hectare in area. Mr. Maye proposed a development which would involve the demolition of the buildings currently on the site and their replacement with a complex incorporating a pub, nightclub with a capacity for 1,900 persons and offices, together with ancillary car parking and other works.
2.2 On 21st December, 2005 an application was lodged with the respondent (“Sligo Council”) for a planning permission in respect of that development. On 22nd February, 2006 Sligo Council issued a request for further information relying on Article 33 of the Planning and Development Regulations 2001 (“the 2001 Regulations”). On 15th August, 2006 Mr. Maye responded to the Council’s request for further information which response was received by Sligo Council on 16th August, 2006. On the following day Sligo Council wrote to Mr. Maye’s agents indicating that the response to its request seeking further information raised significant additional data and it directed that the receipt of the additional information concerned be advertised pursuant to Article 35(1)(c) of the 2001 Regulations. That letter stated as follows:-
“The period of four weeks within which Sligo Borough Council must deal with this application will extend from the date of the newspaper notice when submitted to the planning authority”.
2.3 On 25th August, 2006 the relevant notice was published and on 28th August a copy of the relevant advertisement was received by Sligo Council. On 20th September, 2006 Sligo Council made a decision to refuse planning permission.
2.4 Thereafter on 16th October Mr. Maye’s solicitors wrote to Sligo Council calling on them to make a grant of permission on a default basis. The stated grounds were that the decision should have been taken within 28 days of the receipt by Sligo Council of the further information supplied on behalf of Mr. Maye.
2.5 These judicial review proceedings were instituted on 14th November, 2006, admitted into the commercial list by order of Kelly J. on 18th December, 2006 and were the subject of a grant of leave by Kelly J. on the following day.
2.6 While the overall issue between the parties is as to whether, in all the circumstances, Mr. Maye is entitled to the contended for default permission, in substance three sets of issues arise. I, therefore, turn to the issues.
3. The Issues
3.1 The first issue which arises concerns the proper interpretation of the statutory provisions which govern the time within which a planning authority is obliged to make a planning decision. It is argued on behalf of Sligo Council that what was said in the letter of the 17th August, 2006, quoted above, represents a correct statement of the law. It is common case that the period within which a planning authority has to make its decision is, in practice, suspended while there remains outstanding a request for further information. Therefore, it is common case between the parties that time ceased to run from the issuing by Sligo Council of the request for further information on 22nd February, 2006 and that a new period commenced when that notice was complied with. What is at issue is as to whether (as is contended on behalf of Mr. Maye) that new period commenced on the 16th August, 2006 when the additional information was received by Sligo Council or whether (as contended by the Council) the new period only started to run when an appropriate advertisement of the additional information occurred and a copy of the relevant advertisement was sent to and received by Sligo Council.
3.2 There is no depute between the parties but that, as a matter of calculation, the planning authority was in time in the making of its decision if it, the council, is correct in its interpretation of when time starts to run again. It is equally not disputed but that, if Mr. Maye is correct in his interpretation of when time started to run again, then the planning authority was out of time.
3.3 The first issue, therefore, concerns the proper construction of the relevant provisions of s. 38 of the 2000 Act for the purposes of determining whether Sligo Council was, in fact, out of time. If Sligo Council was not of time then, obviously, that is the end of the case. On the other hand if it is out of time then a prima facie entitlement to a default permission arises. However, in that event, Sligo Council raises further issues which it will be necessary to consider.
3.4 That leads to the second issue which concerns certain limitations on the sort of application which can be the subject of a default permission. Those limitations derive from the jurisprudence of the courts and are not expressly to be found in the statute. That some limitations actually exist, in accordance with that jurisprudence, is a matter agreed by the parties. However two separate questions as to the precise extent, in principle, of those exceptions are in controversy.
3.5 It is common case that a default permission cannot be obtained in respect of a planning application which would involve a material contravention of the development plan for the areas in respect of which the application is made. There are, in addition certain legal authorities to which I will refer in due course, which, it is argued, suggest that the restriction may go further. There is a dispute between the parties as to just how much further (if at all, in reality) those authorities put the matter.
3.6 Furthermore, while accepting that there is no existing authority for the proposition, counsel on behalf of Sligo Council argues that it is appropriate for this court to now take the view that a further and wider limitation on the scope of default permissions should be identified so that a default permission should not be allowed in any case in respect of which planning permission would not normally be given in relation to the development concerned. Thus, in reality, there is controversy between the parties as to the precise extent of the limitation on obtaining a default permission under the existing jurisprudence of the court and a further dispute as to whether that jurisprudence should be extended to widen the limitations on default permissions. It will, therefore, be necessary for me to determine the boundary of the limitation on a default permission and, by reference to that boundary, to determine on which side of that boundary the development in this case lies.
3.7 Thirdly, in the event that I am satisfied that the decision of Sligo Council was taken outside time and that a default permission is not excluded by reason of whatever limitations might be found to exist in relation to such permissions, Sligo Council suggests that the court retains a discretion to refuse the relief claimed and that that discretion should be exercised against recognising a default permission in this case. A number of factors are put forward which, it is suggested, should lead the court to exercise its discretion against making the order sought. It is, in particular, suggested that the court should take into account the nature and scale of the development in the context of potential interference with third party rights, the fact that, it is said, the planning permission could not be implemented in any event because of the inability of Mr. Maye to develop in accordance with the planning permission without obtaining other concessions from the local authority and, in particular, because, it is said, Mr. Maye was aware of the fact that Sligo Council was proceeding on the basis that time would not start to run again until the copy newspaper advertisement had been returned to the Council. On that basis it is said that Mr. Maye was aware that the Council considered that time would not expire until a later date and did not inform the Council of his contrary view. In those circumstances it is suggested that it would be unjust to allow Mr. Maye to have the benefit of the default permission and in those circumstances it is suggested that the discretion of the court should be exercised against making the order sought.
3.8 It seems to me that the issues in the case logically arise in the order in which I have set them out and I propose to deal with them in that order. I, therefore, turn first to the question as to when time may be said to have run.
4. Applicable Time Limit
4.1 The relevant statutory provision is to be found in s. 38(4) of the 2000 Act. That section provides as follows:-
“(4)(a) Subject to paragraphs (b), (c), (d) and (e), where –
(i) an application is made to a planning authority in accordance with the permission regulations under this section, and
(ii) any requirements of those regulations relating to the application are complied with,
a planning authority shall make its decision on the application within the period of 8 weeks beginning on the date of receipt by the planning authority of the application.
(b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in accordance with the permission regulations requiring the applicant to give to the authority further information or to produce evidence in respect of the application, the authority shall make its decision on the application within 4 weeks of the notice being complied with, provided that the total period is not less than 8 weeks.
(c) …
(d) …
(e) … …
(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.
The provisions of subs. (c), (d) and (e) relate to a different regime in respect of particular cases which are of no relevance on the facts of this case.
4.2 It will be seen that the basic provision is to be found in subs. (a) which is to the effect that a decision requires to be made within eight weeks provided that the application is made “in accordance with the permission regulations” and any requirements of those regulations are complied with.
4.3 Subsection (b) requires that the decision be made within four weeks of a notice for further information “being complied with”. Permission regulations are made by the Minister for the Environment, Heritage and Local Government under s. 33 of the 2000 Act which, in subs. (1), states:-
“The Minister shall by regulations provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for the development of land”.
4.4 The relevant provisions of the 2001 Regulations are Article 33(1) which provides as follows:-
“Where a planning authority acknowledges receipt of a planning application in accordance with Article 26, it may, by notice in writing, within 8 weeks of receipt of the planning application, require the applicant:-
(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or
(b) to produce any evidence which the authority may reasonably require to verify any particular or information given in or in relation to the application.”
4.5 Furthermore Article 35 deals with what is to occur on receipt of further information. It is in the following terms:-
“35(1) Where a planning authority receives further information or evidence following a request under article 33, or revised plans, drawings or particulars following a request under article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to the application, and it considers that the information, evidence, revised plans, drawings or particulars received, as appropriate, contain significant additional data, including information in relation to effects on the environment, the authority shall –
(a) send notice and a copy of further information, evidence, revised plans, drawings or particulars, to any person or body specified in article 28, as appropriate, indicating that a submission or observation in relation to the further information or evidence or revised plans, drawings or particulars received may be made in writing to the authority within a specified period, and
(b) notify any person who made a submission or observation in relation to the planning application in accordance with the article 29(1), as soon as may be following receipt of the further information or evidence or revised plans, drawings or particulars, as appropriate, indicating-
(i) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is or are available for inspection or purchase at a fee not exceeding the cost of making a copy, at the offices of the authority during office hours,
(ii) that a submission or observation in relation to the further information or evidence or revised plans, drawings or particulars received may be made in writing to the authority within a specified time period,
(iii) that no fee or further fee shall be payable on condition that any submission or observation referred to in sub-paragraph (ii) is accompanied by a copy of the acknowledgement by the authority of the receipt of a submission or observation referred to in article 29,
(c) require the applicant to publish a notice in an approved newspaper, containing as a heading the name of the planning authority marked “Further Information” or “Revised Plans”, as appropriate, and stating –
(i) the name of the applicant,
(ii) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(iii) the reference number of the application on the register,
(iv) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is or are available for inspection or purchase at a fee not exceeding the reasonable cost of making a copy, at the offices of the authority during office hours, and
(v) a submission or observation in relation to the further information or revised plans may be made in writing to the planning authority on payment of the prescribed fee.
(2) Where a planning authority considers that the notice published in accordance with sub-article (1)(c) does not adequately inform the public, the authority may require the applicant to give such further notice in such a manner and in such terms as the authority may specify.”
4.6 It is, therefore, clear that where further information received under Article 33 contains significant additional data, the provisions of Article 35 come into operation. Article 35 requires that the local authority, firstly, considers whether or not the additional information is significant. If it does not consider it to be significant, it takes no further steps other than to go ahead and determine the planning application. If it considers the additional information to be significant then it must, itself, notify the bodies specified in sub article (1)(a) together with all persons who have been involved in the process under sub article (1)(b). It must also require the applicant for permission to publish a notice in a newspaper in accordance with sub article (1)(c).
4.7 The argument as to the proper construction of both s. 38 of the 2000 Act and Articles 33 and 35 of the 2001 Regulations as put forward on behalf of Mr. Maye has the merit of simplicity. It is said that s. 38(4)(b) is clear in its terms and refers to the time limit expiring four weeks after the notice is complied with. It is said that the notice is complied with when the information is provided. It follows, the argument goes, that the time limit expires four weeks after the further information is provided.
4.8 The counter argument put forward on behalf of Sligo Council is, understandably, more complex given that the straightforward approach adopted on behalf of Mr. Maye seems, if correct, to lead to the conclusion argued for on his behalf.
4.9 Counsel for Sligo Council draws attention to the fact that a pre-condition for obtaining a default permission is that the applicant has complied with any requirements of the regulations. If an applicant were to fail to comply with an requirement to publish an appropriate notice then he would not, of course, have complied with the regulations and would not, it is said, it follows, be entitled to a default permission. However it is pointed out that the regulations do not, of themselves, require the publication of the notice within any particular time frame.
4.10 This is undoubtedly true. It seems to me to be another example of a difficulty in respect of the overall regime in relation to planning permissions which I noted in a judgment delivered by me today in Dunkerrin Homes v. Dun Laoghaire Rathdown County Council (Unreported, High Court, Clarke., 27th April, 2007). The devil in relation to many of these matters is in the detail. In at least certain cases it appears to me that the detail has not been adequately worked out. In Dunkerrin Homes I identified one such matter. This seems to me to be a second. There is no doubt that
s. 38 requires compliance with the regulations. There is no doubt that the regulations require, in appropriate case, the publication of a notice. Section 38 requires a decision within four weeks of compliance with a notice for further information. However the regulations impose no time limit on such compliance. Does the notice even have to be published within four weeks. If so why? If not, then how are we to know that the regulations have been complied with at the time when, if Mr. Maye’s argument be correct, the obligation to make a decision arises. Given that the Oireachtas, and the Minster who made regulations on foot of legislation enacted by the Oireachtas, do not appear to have turned their mind to the difficulty that arises from these interlocking provisions, the court has to do the best that it can.
4.11 Sligo Council argues that the solution to the difficulty is to be found by construing all of the relevant measures in the context of each other and taking the view that, properly construed, an applicant could not be said to have complied with the request for further information unless he had complied with the obligation (if it arises) to publish a notice. The difficulty with that argument is that s. 38(4)(b) simply speaks of complying with the notice for information. The notice for information simply requires the provision of the information. If the additional information is not considered to be material then no further steps are to be taken. The construction contended on the part of Sligo Council seems to me to create a most illogical situation. What is the status of time running in the period immediately after the receipt of additional information but before the Council has made its mind up as to whether the information received is sufficiently material to warrant invoking the provisions of Article 35. In those circumstances, in accordance with the argument put forward on behalf of Sligo Council, the question of whether time has begun to run again is, in effect, in abeyance. If a decision is taken that the publication of a notice is unnecessary, then time will, retrospectively, be deemed to have started to run again as of the date of receipt of the information. That does not seem to me to be a construction which ought to be placed on the relevant provisions unless constrained to do so by clear wording. On the contrary, in this case, the position adopted on behalf of Mr. Maye has the benefit of being in accordance with what seems to be the natural meaning of the terms of the section.
4.12 Sligo Council also places reliance upon the undoubted fact that courts have frequently acknowledged the importance of public participation in the planning process. See for example State (Standford) v. Dun Laoghaire Corporation (Unreported, Supreme Court, Henchy J., 20th February, 1981,) Crodaun Homes Limited v. Kildare County Council [1983] ILRM 1 and White v. Dublin City Council [2004] 1 IR 545. In that context it is pointed out that the time which any person seeing a notice concerning the materiality of further information would have to deal with that information would be very short indeed. There is no doubt that there is some merit in the underlying factual contentions for that argument. The planning authority is required to decide on materiality. It then must require the applicant to publish a notice, some time may then elapse before the notice is actually published. (Indeed the question was raised at the hearing as to whether the planning authority has an implied entitlement to impose a time limit on the publication of the notice). Whatever may be the answer to that question (and it does not seem to me that it needs to be answered in these proceedings) it is clear that some little time will elapse between the receipt by the Council of the additional information and the publication of a notice, if required. On the basis of the construction advanced on behalf of Mr. Maye, that period eats into the four week period within which the local authority must makes its decision. Thus the decision will have to be made in a relatively short period of time after the publication of the notice, thus limiting the ability of persons interested to make an effective contribution.
4.13 However, it is also important to note the limited function of a notice required to be published in accordance with Article 35. Firstly the remaining provisions of Article 35 require all of those who have participated in the planning process to that date to be directly notified by the planning authority itself. Therefore the only persons who, in practice, may become involved because of the publication of a notice under Article 35 are persons who did not choose to become involved by way of making observations in relation to the original planning application. It must also be noted that the further information supplied cannot lead to the making of an entirely new application. It can only lead to variations in the application which can properly be described as modifications.
4.14 Therefore the only persons affected are those who chose not to involve themselves in the original planning application but who might choose to involve themselves because of a modification. While there is no doubt that the regime contemplates giving such persons an opportunity to become involved, the level of that opportunity needs to be seen both against the limited nature of persons who could legitimately be affected and also against the overall background as the 2000 Act which permits that, in an ordinary case, a final decision can be made as early as five weeks after the planning application itself is first made.
4.15 In all those circumstances I do not see that there is any sufficient basis for departing from what seems to me to be the natural meaning of the section and I therefore am of the view that the four week period specified in s. 38(4)(b) starts to run as soon as there has been compliance with the obligation to deliver the information requested to the planning authority.
4.16 I leave over to a case where it arises, and is argued, the possibility that a new approach to the issue of default permissions may be mandated by the requirements of the E.U. Public Participation Directives such as Directive 96/61/EC.
4.17 I should note that I am not satisfied that the fact that the notice requiring additional information in this case makes reference to the possibility that a newspaper advertisement might be required in the event that the additional information was considered to be material, can affect the issue. The time at which the four week extended period starts is a matter of law dependent on the proper construction of s. 38. That period could not be altered by reference to whether attention was drawn to the provisions of Article 35, of the Regulations in the notice or whether the notice contained no such reference.
4.18 Finally I should note in passing that the Minister has purported to make regulations under the 2000 Act which seek to give a quasi statutory basis for an extension of time along the lines contended for by Sligo Council in this case. While it is not, strictly speaking, relevant to this case, in that the relevant regulations post date the events of this case, it does not seem to me that the section permits the Minister to make regulations of that type. The section, it seems to me, is clear and has the meaning which I have identified.
4.19 I am, therefore, satisfied that the four week period specified in subs. (b) began to run as soon as Mr. Maye had supplied Sligo Council with the information requested. It not being contended that that information failed to meet the requirements of the Council and furthermore it not being contended that Mr. Maye was otherwise in breach of the regulations it seems to me that if follows that a default permission prima facie arises on the facts of this case subject to the other issues which I have earlier identified. I therefore turn to those issues.
5. The Limits on a Default Permission
5.1 That there are some limitations on the entitlement to a default permission cannot be doubted. In Dublin County Council v. Marren [1985] ILRM Barrington J. stated
“The fact that the monument is a monument listed for preservation in the County Council’s own development plan is, however, relevant. Were the County Council to grant a permissions in total disregard of the implications of that permission where a monument listed for preservation in its own development plan it would, it appears to me, be in material contravention of that plan. The question therefore arises of whether the County Council would have power to grant such a permission. Section 26, subsection (3) of the 1963 Act provided that the planning authority might not grant permission for a development which would materially contravene the development plan without the consent of the Minister. If therefore the planning authority could not grant such a permission of its own initiative it seems logical to conclude that it could not, by default, and without reference to the Minister, grant a permission which it had not power to grant without the Minister’s consent”.
5.2 In similar vein Finlay CJ in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 said the following:-
“Having regard to my conclusion that this proposal constitutes material contravention of the development plan, there can be no question of the planning authority being deemed to have decided to grant permission by reason of efflux of time because the granting of permission without the passing of a valid resolution pursuant to s. 26, sub-s. 3, would be illegal and outside the powers of the planning authority”.
5.3 That proposition has been followed in Calor Teoranta v. Sligo County Council [1991] 2 I.R. 267 and more recently in Walsh v. Kildare County Council [2001] 1 IR 483. It is clear that the logic of those decisions is based on the vires of the local authority to grant the permission concerned. At the time when Marren was decided a planning permission in respect of an application which was in material contravention of the development plan could only be permitted after a reference to the Minister. By the time P. & F. Sharpe was decided it was necessary that a resolution of the elected members of the planning authority be passed. In either case the grant of permission in the case of an application which involved a material contravention of the development plan was outside the competence of the planning officials who would, in the ordinary way, have an entitlement to determine the application. There is no doubt, therefore, but that I must consider whether, as alleged by Sligo Council, the application in this case is in material contravention of the plan.
5.4 However it has been argued in this case that both on the basis of the existing jurisprudence of the court and on the basis of a contended for development of that jurisprudence I should determine that a wider jurisdiction to refuse a default permission exists.
5.5 I turn first to the existing jurisprudence. In McGovern v. Dublin Corporation [1999] 2 ILRM 314 Barr J. took a view that the entitlement to a default permission should be strictly interpreted in view of the potential consequences. In refusing to hold that a default permission arose on the facts of that case Barr J. stated the following:-
” … it would be unreal and potentially unjust to others to interpret the sub-section as including not only permission by default for a development which is “normally permissible” and where the sanction is dependent on the planning authority being satisfied that the proposed use is consistent with the proper planning and development of the area in the special circumstances of this case. The latter is granted by default entails a substantial and potentially far-reaching incursion into the rights and obligations of the authority under the planning code and of possible objectors to the project in question. The grant of permission by default for a development which is “normally permissible” on foot of the relevant plan entails no major encroachment on the rights and obligations of the planning authority …”
5.6 However it is important to note that the development plan with which Barr J. was concerned was one which specifically used the term “normally permissible”. The judgment does not, in my view, amount to a determination by Barr J. that a default permission could not arise in a case where, in the view of the court, a permission would not normally be granted. Rather the use of the term “normally permissible” is a reference to the fact that the development plan itself indicated that a development of the type proposed in that case would not normally be allowed and would only be allowed in special circumstances. In my view, therefore, Barr J. considered the application in that case to either be a form of material non contravention or something so close to that as required to be treated in the same way.
5.7 In my view it is not appropriate to extend the limitations on an entitlement to a default permission beyond the material non contravention circumstances identified in P. & F. Sharpe. The position adopted in most of the cases stems from the vires of the planning officials concerned to make a decision without reference to the elected members of the planning authority (or formerly the Minister). The starting point has to be that the 2000 Act itself (which as I pointed out earlier in this judgment has been recently re-enacted by the Oireachtas) places no limitation on the entitlement to a default permission by reference to the type of planning application involved. It does require that the applicant has complied with the planning regulations. There is not even a hint, however, in the legislation that the Oireachtas took the view that there should be any limitations by reference to the type of application involved. In P. & F. Sharpe it was determined that an overall and harmonious construction of the legislation required the exclusion of applications from the possibility of a default permission where the application could not itself have been granted by the planning officials. It is, of course, the failure of those planning officials to make a decision in time which gives rise to the default permission. There is therefore a clear logic in the exclusion of the possibility of a default permission in circumstances where it would not have been open to the planning officials, whose default is relied on, to have granted the permission in the first place.
5.8 However it seems to me that to go further and involve the court in deciding the questions of planning judgment as to what sort of planning permission might properly be allowed in a particular area would be wrong in principle for a number of reasons.
5.9 Firstly it would seem to me to amount to legislation by the courts.
5.10 Secondly it seems to me that it would involve the courts in a role inappropriate to the courts. The content of a development plan is determined by the elected members of the planning authority after a process specified in law. The judgments involved are matters for the elected local representatives with whatever advice they consider appropriate. Once the development plan has been adopted it is then there in black and white in documentary form. While there may be difficulties in determining, on the facts of an individual case and having regard to the way in which the development plan is formulated, whether a particular development is in contravention of that plan, such questions of construction of a development plan and the application of the plan as properly construed to the facts of a case, are no different, in principle, from the types of questions of construction and application to the facts of cases that the courts have to deal with in a huge variety of circumstances. There is nothing, therefore, unusual in asking a court to construe a document and apply it to the facts of a case. This is so even where the document is generated in a context that requires some degree of expert knowledge to inform its construction. That expert knowledge can be supplied by expert evidence as appropriate.
5.11 However to ask the courts to go further and form a generalised judgment about whether a particular planning permission would ordinarily be allowed would be to involve the courts in exercising the type of planning judgment which requires an expertise which the courts do not have and would involve the courts in a role not contemplated by planning legislation. It seems to me, therefore, that if there are to be limitations beyond the material contravention limitation then it is a matter for the Oireachtas to determine, as a matter of policy, what those limitations should be. Clearly, despite the many comments made by courts as to the potential unfairness of the default permission regime, the Oireachtas was not persuaded to introduce any such limitations when revisiting the issue on the enactment of the consolidation 2000 Act. The Oireachtas has, therefore, in my view, at present, set its face against such limitations. In those circumstances it would be wrong of the courts to impose them.
I, therefore, propose approaching the limitation in this case on the basis that in order for the limitation to apply it is necessary that it be established that the application concerned involved a proposal that was in material contravention of the development plan.
5.12 The question of what constitutes a material contravention of a development plan needs to be approached in two parts. Firstly, the proposed development must be in contravention of the development plan. Secondly, the manner in which it is in contravention of the development plan must be material. On that basis I propose to consider the question of whether the development in this case was in material contravention of the Sligo Development Plan. That this is a matter for the courts is clear from Tennyson v. Dun Laoghaire Corporation (1991) 2 I.R. 527.
6 Is the development a material contravention?
6.1 So far as materiality is concerned I adopt the test set out by Barron J. in Roughan v. Clare County Council [1991] 2 I.R. 527, where he stated as follows:-
“What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there is no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention.”
6.2 In other words if the extent of a deviation from what is specified in the development plan is such as might give rise to a reasonable expectation of opposition based on that deviation, then the deviation will be regarded as material.
6.3 In addition questions may arise as to what is, or is not, on the facts of an individual case, a contravention (whether material or otherwise) of the development plan itself.
6.4 The way in which development plans are set out vary. Certain aspects of the plan may have a high level of specificity. For example the zoning attached to certain lands may preclude development of a particular type in express terms. Where development of a particular type is permitted, specific parameters, such as plot ratios, building heights or the like may be specified. In those cases it may not be at all difficult to determine whether what is proposed is in contravention of the plan. In those circumstances it would only remain to exercise a judgment as to the materiality of any such contravention.
6.5 However at the other end of the spectrum, it is not uncommon to find in a development plan objectives which may, to a greater or lesser extent, be properly described as aspirational. Such objectives may be expressed in general terms. In such cases a much greater degree of judgment may need to be exercised as to whether the development proposed amounts to a material contravention of the development plan.
6.6 Having made those general observations it is necessary to consider the basis upon which it is contended, on the facts of this case, that the proposal put forward is in contravention of the development plan and thus, not open to being the subject of a default permission. In reality two separate grounds for suggesting that the proposed development is in material contravention of the development plan are put forward. 6.7 Firstly it is said, undoubtedly correctly so far as it goes, that the development would involve a significant intensification in the nightclub use on the site having regard to the fact that the proposed nightclub would be capable of serving up to 1,900 persons. In that context it is said that the scale and intensity of the proposed use was not in keeping with the character of the area which would appear to be primarily an established residential area with community facilities and office use.
6.8 Paragraph 3.4.19 of the development plan does suggest that larger scale night time uses, such as nightclubs, should have good access to public transport and taxis at closing time.
While factors such as those identified under this heading might well have been matters which could properly be taken into account by the planning authority in considering whether to grant permission. It does not seem to me that the location of the premises is such that it has been demonstrated that it would infringe paragraph 3.4.19 of the development plan by permitting it to go ahead in that location. In the circumstances I am not persuaded that the scale and location of the development would, in itself, amount to a breach of the development plan.
6.9 A more substantial argument was, in my view, put forward in respect of another aspect of the plan. Objective OS 7 of the development plan specifies certain lands in relation to which the objective specified in the plan is to provide a linear park running along the Garvogue River from Sligo town to Doorly Park/Cleveragh Park. In the immediate vicinity of the proposed development this objective has been partially achieved by including new facilities between the roadway and the river. The proposed development is on the side of the roadway opposite to the river. Moving from the road towards the river, provision has been made for a grassy area followed, as one moves towards the river, by a cycle path and a paved zone around bench seating. Such a development is in the course of construction in a number of phases. It will not, of course, be the case that it will be possible to construct an identical facility along all of the length of the river in respect of which objective OS 7 has been specified.
6.10 These matters are relevant to this proposed development because of a variation introduced into the planning application in the course of its progress. To allay concerns expressed by the local authority’s road department, revised plans were submitted which involved creating a centre turning lane to enable access to be obtained to the proposed developed without blocking traffic while vehicles were awaiting an opportunity to make a rightward turn into the premises. In order to achieve that variation it would be necessary to widen the road at the relevant point to three lanes thus making provision for a centre, right turning lane. The widening of the road, in turn, would, eat into the grassy area immediately opposite the proposed development. Therefore the net effect of the development going ahead as modified, in accordance with the observations of the roads department, would be that there would be a curved bite out of the grassy area immediately opposite the development leading to a situation where, at its widest point, there would be no grassy area at all and a reduced grassy area for a distance either side of the widest point. Obviously such a development would impinge on the establishment of an attractive linear park as identified as an objective in the development plan.
6.11 The question of judgment which I must exercise is as to whether the attesting of that infringement would amount to a material contravention of the plan. On balance I have come to the view that the development would, in that respect, amount to a material contravention of the development plan. While it is, of course, the case, as was argued by counsel for Mr. Maye, that it is unlikely to prove possible to have such a grassy area along the entire route, it nonetheless remains an objective of the development plan. To actually go backwards and remove a portion of the grassy area would seem to me to be in conflict with that objective. The fact that an objective may not be capable of being completely achieved does not take away from the fact that developments, in order to conform with the development plan, should at least move in the right direction. Where, to a material extent, the development not only fails to move in the right direction but actually goes against the objectives of the development plan, then it seems to me that has a potential to amount to a material contravention of that plan. The second judgment that must, of course, be exercised, is as to its materiality.
6.12 In that regard counsel for Mr. Maye pointed out, again correctly so far as it goes, that in the overall context of the length of the proposed linear park, the amount that would be lost would be relatively small. However that submission seems to me to ignore the fact that what is sought to be achieved is, so far as possible, a continuous pleasant walking area running from Sligo centre along the river towards the outskirts of the town. In that context it is not the percentage of the length which is key but rather the extent to which any such walkway might be interrupted by areas which do not meet the linear park criteria specified in the objective. In that sense it seems to me that the interference with the objectives specified in the development plan is material. 6.13 In those circumstances I have come to the view that this development, if implemented in accordance with the revised road plan submitted in the course of the application, would amount to a material contravention of the plan. It, therefore, follows that it is not appropriate to deem a default permission to exist for such a development.
7 Discretion
7.1 However lest I be wrong in that conclusion I should also deal with the question of discretion. It has been suggested that the court retains a jurisdiction to exercise a discretion not to permit a default permission, notwithstanding that the decision of the planning authority was not taken in time and notwithstanding that the proposed development would not amount to a material contravention of the development plan. In Illium Properties Limited v. Dublin City Council (Unreported, High Court, O’Leary J., 15th October, 2004) it was noted that it was not necessary to decide whether the default permission was mandatory or discretionary. Butler J. had noted such a discretion in The State (Conlon Construction Limited) v. The Council of the County of Cork (Unreported, High Court, Butler J., 31st July, 1975). It would seem that in Conlon Construction the development concerned was a significant one and the relief sought was refused by Butler J. in the exercise of his discretion. I am not persuaded that the scale of the development is an appropriate factor to be taken into account in the exercise of the courts discretion. As pointed out earlier in the course of this judgment there is nothing in the statute from which it might even be inferred that there are particular types of development for which default permissions cannot be obtained. To impose a regime, under the heading of judicial discretion which would mean that significant developments could not be the subject of a default permission would also, in my view, amount, in practice, to legislation by the court. It does not seem to me to be a factor that could properly be taken into account. As indicated earlier it is possible that the Public Participation Directive may influence the proper construction of Irish planning law in this regard in cases to which it applies.
7.2 Furthermore, it is submitted that a discretion should be exercised against allowing a default permission in this case by virtue of the fact that the development could not be carried out without a separate consent from the Council in relation to that part of the development (that is to say the roadworks to which I have already referred) which will take place outside Mr. Maye’s lands. It is undoubtedly factually correct to state that such a consent would be required. It may well be that, having regard to the position taken by Sligo Council in these proceedings, it might well be inferred that such a consent would not be forthcoming. However it does not seem to me that that issue has, in reality, anything directly to do with the planning application itself. The courts have consistently held that the fact that a person may need some other form of permission from a public authority in order to carry out a development does not, of itself, amount to a basis upon which planning permission should be granted or refused. In like manner it does not seem to me to be an appropriate basis upon which the court should exercise its discretion.
7.3 Finally reliance is placed on behalf of Sligo Council on the correspondence, to which I have already referred, in which the Council made it clear that it was operating on the basis that time would only begin to run again when the copy advertisement was sent on behalf of Mr. Maye back to the Council. For the reasons which I have analysed above, I have concluded that that view was incorrect in law. However it was made clear to Mr. Maye and his advisors that that was the view of the Council and it was, therefore, reasonable to assume that the Council would operate on the basis that time did not expire until four weeks after the receipt of the advertisement.
7.4 Neither Mr. Maye nor his advisors wrote to Sligo Council in the intervening period indicating that they did not accept the position adopted by Sligo Council. It seems to me that that fact does represent an appropriate basis for the exercise of the courts discretion. In so doing I make no finding of a deliberate attempt on the part of Mr. Maye or his advisors to mislead the Council. However they were, or ought to have been, aware that the Council were of the view that there was an extended period available for the making of the decision. No indication was given to the Council that that view was contested. If Mr. Maye or his advisors had indicated to the Council that there was a different view and if the Council had decided to take its chances in reliance of their alternative view of the law, then no question of the exercise of the courts discretion could, in my view, arise.
7.5 However where Sligo Council were, not unreasonably, entitled to take the view that the position which they had set out was not contested then it seems to me that it would be appropriate, on that ground and only that ground, to exercise a discretion against recognising a default planning permission. I should emphasise that it is only on that ground and not on the other grounds advanced that I have come to that view. I would, therefore, have been prepared to exercise my discretion against recognising a default permission on that ground if I had not been satisfied that the development amounted to a material contravention of the development plan.
7.6 In all the circumstances Mr. Maye’s application must be refused.
Ryan v Clare County Council
[2014] IESC 67
Judgment of Mr. Justice John MacMenamin dated the 11th day of November, 2014
1. The appellants sought a declaration and a mandatory order in the High Court to the effect that the respondent (“the County Council”) be deemed, pursuant to s.34(8)(f) of the Planning & Development Act 2000 (“PDA 2000”), to have made a decision to grant planning permission in respect of a development proposal submitted on the 2nd May, 2007, relating to works on a property on Liscannor Road, Lahinch, Co. Clare. The High Court judge held that the application for judicial review was made within time. However, he refused relief to the appellants, essentially on discretionary grounds; holding that the court was entitled to refuse relief by reason of the fact that, to allow the project to proceed without regard to the Local Area Development Plan for Lahinch would be an unlawful exercise of the court’s discretion.
2. The appellants (“The Ryans”) obviously do not argue with the judge’s finding on the time issue which was in their favour, but now submit that the judge erred in relation to the exercise of his discretion refusing relief. They contend the High Court was actually under a duty to make a declaration, and to grant a mandatory order in circumstances described later in this judgment. The issues raised in the appeal herein concern matters which pre-date the amendment of PDA 2000 by the Planning & Development Amendment Act 2010 (PDA 2010), brought into effect by the Planning and Development (Amendment) Act 2010 (Commencement) Order (S.I. No. 132 of 2011) on March 23, 2011 (see particularly s.23 of the amending Act). The judgment also pre-dates the judgment of this court in Abbey Drive Developments Ltd. v. Kildare County Council [2010] 1 ILRM 187. As well as hearing comprehensive submissions from the main parties, counsel on behalf of the first named notice party made submissions seeking to invoke rights under Article 6 and 8 of ECHR, which were adopted by Mr. James Connolly, S.C. who appeared on behalf of the County Council, and the solicitor acting for the second named notice party. The first issue which falls for consideration is the time-limitation issue.
The Relevant Statutory Position
3. It is important to make clear at the outset that it was common case that the relevant time limit for bringing this application for judicial review was the three month period prescribed in Order 84, Rule 21 RSC, as it stood in 2007. Thus, while other statutory limits are now considered in this judgment, it is by way of context only. As the statute law stood at the time of the application for planning permission, s.34(8)(a) of the PDA 2000 prescribed a time limit of 8 weeks, within which a County Council should make an initial decision on a planning application. Failing a decision being made, s.34(8)(f) came into operation, and a “default planning permission” might arise. Insofar as is relevant, s.34(8)(f) PDA 2000 provides that, subject to a range of conditions, not material here;
“(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.” (emphasis added)
4. As the Council failed to make a decision, the appellants sought both a declaration and an order of mandamus directing the County Council to grant planning permission in respect of the development of two two-storey houses, pursuant to s.38(11) of the PDA 2000. As this judgment concerns a legal issue of some historical controversy, some further background description is necessary.
Default Planning Permission
5. In 2007, a failure by a local authority to make a decision resulted in the consequence that a decision to grant was deemed to have been made, regardless of any merits and objections. The operation of what were termed ‘default planning permissions’ was much criticised by judges, legal scholars, and commentators. These criticisms had considerable substance. The system created a disjunction between cause and effect. The ‘cause’ was that a planning authority had failed, or neglected, to perform its duty to make a decision which might be to grant, to refuse or, alternatively, to grant permission subject to conditions. Instead, there was simply a “deemed decision” to grant. The planning authority suffered no sanction for having failed to perform its duty. In fact, the effect was only felt by objectors, very often (as here) neighbours, such as the notice parties herein, who might have to live with the consequence that a planning application, not subject to any conditions, was “deemed” to have been the subject of a favourable decision by the local authority. The rationale for the existence of such provision is not easy to comprehend. Why should the victims of maladministration, be confined to those individuals who had no responsibility for what went wrong, and who had most to lose in terms of amenities or property values. Perhaps, the public at large might be affected? In Planning & Development Law, 2nd Ed., (Thompson Round Hall, 2007), Garrett Simons, S.C. described the provision as it then stood in these terms:
“The existence of this default mechanism is indefensible. There is nothing to be said in its favour: it is inherently unfair; unpopular with judges; disproportionate to the mischief which it is intended to remedy; and inconsistent with other aspects of the PDA 2000.”
6. In expressing these sentiments, the author was doing no more than reflecting views which Blayney J. had expressed, perhaps somewhat less trenchantly, in Molloy v. Dublin County Council [1990] 1 I.R. 90, at 97. There that judge pointed out:
“The purpose (of the default mechanism) is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicate its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because a permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted. It would seem to be a relatively simple matter to devise some alternative sanction which would achieve the same desirable purpose of having planning applications expeditiously dealt with, but which would not have the same potentially serious consequence for the community in the event of a failure on the part of a planning authority through error or inadvertence to comply with the statutory time limit, and I would hope that the legislature might give serious consideration to this suggestion.”
7. Similar reservations were expressed by Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678, an authority referred to later. Both Abbey Drive, referred to earlier, and Maye are relevant to this appeal, because both lay emphasis on the fact that, whatever reservations one might feel on the law as it then stood, judges cannot be legislators, and should not impermissibly resort to judicial discretion, in order to avoid the legal consequence of a default permission.
8. A further issue, also touched on later in this judgment, is whether the section, as it then stood, involved a “determination” of civil rights, within the meaning of Article 6(1) of the European Convention on Human Rights (“ECHR”), property rights under Article 1 of the First Protocol to the ECHR; or in some cases, privacy rights under Article 8 of the ECHR. All of these considerations, some commentators suggested, would have necessitated a fair hearing on the question of whether or not actually to grant such a permission involving a balancing of the rights and interests involved.
9. Be that as it may, the duty of this Court is to apply the law as it stood at the time of the relevant planning application. Doubtless, based on the concerns just described, the learned trial judge declined to grant relief.
Issues for Determination
10. The issues for determination in this appeal include:
• Whether the appellants’ application for leave to apply for judicial review was made ‘promptly’, under the rules of court. This invites analysis of when, precisely, the grounds for the application first arose;
• Whether the appellants are precluded from bringing their application for, or obtaining relief by way of, judicial review, on the ground of delay?;
• Whether as a matter of discretion, this application for judicial review should be refused by reference to the possible rights of the notice parties?;
• Whether, in the absence of a finding that the application involved a material contravention of the development plan, the appellants were necessarily entitled, as of right, to obtain by default a decision to grant planning permission with respect to their planning application?;
• Whether the appellants’ application for planning permission in fact involved a breach of the local area plan applicable to the locality of the proposed development?;
• If there was such a breach of the local area plan, whether any such breach was material or sufficient to warrant declining relief?;
• Whether, regardless of materiality, the statutory requirements, having regard to such local plans, precluded the High Court from directing the respondent to issue a default planning permission in respect of a proposal which it was suggested might not accord with the provisions of the lap?.
11. These questions are somewhat interwoven, and thus may be conveniently considered under three broad headings; first, the time/remedy issue; second, judicial discretion; and third, insofar as it properly arises, the rights of the notice parties. The notice parties participated in the appeal to the extent outlined earlier.
12. Some indication of the degree of ‘linkage’ between the issues can be gleaned from the fact that the time limits are, in fact, governed by the appropriate remedy; and the issue of judicial discretion (said to have arisen by reason of possible non-compliance with the Local Area Plan), was, at least, informed by the High Court judge’s concern as to the potential for the denial of rights of the public and third party objectors in a default permission.
The Time/Remedy Issue
13. Counsel for the County Council submits that the application now made for mandamus was made outside the time prescribed by Order 84, Rule 21 RSC. That Rule prescribes that applications shall be made within three months from the date when grounds for the application first arose. It is necessary to set out the chronology and circumstances from the planning application to the leave application.
Chronology
14. The planning application was made in writing on the 2nd May, 2007. The Council accepts that, apparently for technical reasons which remain opaque, it failed to make a decision within the statutory period of eight weeks from the date of receipt of the planning application. The statutory period for a decision on the planning application, therefore, expired on the 26th June, 2007.
15. As the application for leave for judicial review was not brought until the 19th November, 2007, the County Council at first made the case that the application was out of time (insofar as the matter might have been governed by PDA 2000), or, alternatively, relied on delay claiming the application was out of time under the Rules of the Superior Courts. It is accepted now that the matter is governed by the Rules, and not by the provisions of PDA 2000. Both these time limits will be considered in the context of delay.
The Form of Remedy
16. That time issue is linked to the form of relief appropriate in applications of this type. The appellants sought mandatory relief. This, of course, would necessitate a determination that the respondent County Council owed a legal duty to the appellant. This submission requires the Court to consider whether what is in question under s.34(8) is part of a two-step process comprised, first, of a failure to decide, and then, second, requiring a formal demand to comply with a statutory duty, or whether, alternatively, the failure of the County Council to make a decision was, ipso facto, a breach of duty, requiring no such formal legal demand. The appellants say it is a two step process: that the County Council, having failed to make a decision permitting the project, must then be compelled, but on a formal demand, to make a grant of planning permission pursuant to s.34(11)(a) PDA 2000. That subsection provides:
“(11)(a) Where the planning authority decides under this section to grant a permission-
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals-
(I) it is withdrawn, or
(II) it is dismissed by the Board pursuant to section 133 or 138 , or
(III) in relation to it a direction is given to the authority by the Board pursuant to section 139 , and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.” (emphasis added)
17. Sections 133, 138 and 139 of the Act are not material to consideration. At first sight therefore, there is both a decision to grant permission, and then it is followed by the making of a grant. One can, therefore, reach a tentative hypothesis this was a two step process. An entitlement to carry out a development would appear to follow on from a grant, not from the primary decision. The permission is simply what it says, a decision to grant permission; it is the grant which, from a planning law perspective, renders lawful the carrying out of the development. Is this hypothesis confirmed by further analysis?
18. In what follows one cannot avoid observing a certain incongruity in the case. The County Council relies on its own default in order to place a duty on the appellants. I emphasise that it was ultimately accepted that the time limitation was that set out in the Rules of the Superior Courts, that is, three months.
19. By statute, (insofar as a time limit under PDA 2000 might have applied), the time permitted for judicial review, by way of certiorari, of a decision by a planning authority would be eight weeks; (see s.50(3) PDA 2000). The County Council’s case was that its duty was simply to make a decision on the application by the 26th June, 2007, and thus, whether under statute or the Rules, the time ran from then. The Council points to the fact that the appellants’ planning consultant deposed in affidavit to having contacted the Council’s planning department on the 27th June, 2007 enquiring as to the outcome of the planning application, and that he was advised that no decision had issued by that date. But was there ever in fact even a primary decision in the sense intended by the statute?
20. Relying on s.34(11)(a) quoted above, the Ryans contend that it was not until the 24th July, 2007, (being the expiry of the statutory 4 week time limit for the bringing of an appeal) that a right even to call for the grant of a permission by default was vested in them. In response, the Council contends that, by the afternoon of the 3rd July, 2007, the appellants were aware through their lawyers, that the Council had not made a decision on the planning application within the 8 week statutory period specified by s.34(8)(a) PDA 2000. But, the appellants rejoin, the expiry of the four week ‘appeal period’, prima facie, can not give rise to a grant of permission either
21. In summary then, the Council at first contended in this appeal that the “grounds for the application” for a judicial review arose first, either on the 26th June, 2007, being the date of its failure to carry out the relevant duty which was amenable to challenge by judicial review; or alternatively, its failure was either, (a) to issue to the appellants a notification of a decision to grant planning permission by default within 3 working days of the 26th June, 2007, (see s.34(8)(f) PDA 2000; and Article 31 of the Planning & Development Regulations 2001 (S.I. No. 600 of 2001)), (as amended by the Planning and Development Regulations 2006 (S.I. No. 685 of 2006)), which provide that notification of a decision by a planning authority in respect of an application shall be made within three working days of the day of the decision); or, (b), to make the grant of planning permission to the appellants after the expiry of the statutory 4 weeks for an appeal, that is, the 24th July, 2007 (see s.34(11)(a)(i) PDA 2000). In either event, Council contended, the Ryans were out of time, as a leave application was not made until the 19th November, 2007.
22. Alternatively, the Council relied on a further line of defence still relevant on the general issue of delay. It said that the Court should also have regard to the fact that, had (hypothetically) a decision either to grant or refuse the application for permission actually been made on the 26th June, 2007, then, pursuant to the provisions of s.50(4)(a)(i) PDA 2000, the appellants, (assuming the matter has been governed by PDA 2000), in the ordinary course of events, would have had to make an application for leave to apply for judicial review within a period of 8 weeks, beginning on the date of the decision (i.e. by 20th August, 2007). The Council submits that, where a planning authority decides under s.38 of PDA 2000 to grant a permission, the period for the taking of an appeal to An Bord Pleanála from that decision would have expired on the 23rd July, 2007; so that, even were the court to adopt an ‘expansive’ approach, insofar as the claim for mandamus is concerned, the Council’s obligation under s.34(11)(a)(i) was to make a grant of permission “as soon as may be” after the expiration of the period for the taking of an appeal (i.e. as and from the 23rd July, 2007). It is said this ‘crystallised’ the period for judicial review time purposes.
23. Thus, the Council submits, on the assumption that time began to run against the applicants from any one of those points, and even allowing that it was for a period of 3 months under the Rules for bringing judicial review proceedings, that time must have expired on the 22nd October, 2007. But the application for leave was not made until the 19th November, 2007. Was it out of time?
The Discretionary Issues
24. The County Council also looks to three “discretionary” issues which form part of the circumstances which, it says, should also go to the manner in which the court’s discretion should be exercised. The Council says that, added to, or as a component of, the elapse of time, any one, or all, of the following three considerations would have warranted refusal of relief:
(i) First, while the Council’s solicitors advised the Ryans’ solicitors to write to them on the 9th July, 2007; more than 7 weeks expired thereafter. It was only on the 28th August, 2007 that the appellants’ solicitors first wrote to the County Solicitor asserting that a default permission had arisen. The County Council did not receive them until 30th August, 2007. It is said there was delay on this basis.
(ii) Second, when the application was opened before the High Court in the full judicial review hearing, counsel for the Ryans appraised the court that a deliberate decision had, in fact, been taken not to seek any response from the Council until after the expiration of the period allowed to notice parties for bringing an appeal to An Bord Pleanála as provided under s.34(11) PDA 2000. The County Council says this was a conscious and deliberate “inaction” on the appellants’ part in order to go beyond the expiration of any potential entitlement that the notice party – objector might have had.
(iii) Third, it was readily apparent from a letter from the County Council’s solicitors dated the 17th September, 2007, that the Council was not amenable to being regarded as having actually granted a default permission to the applicants on the 26th June, 2007; yet, despite that, the applicants allowed a further period, in excess of two months to expire before the application was made to the High Court for leave to apply for judicial review.
25. Taking these additional discretionary factors into account, it is said, that having regard to the provisions of Order 84, Rule 21(1) of the Rules of the Superior Courts, the appellants cannot be said to have met their primary obligation of having made the application “promptly”, nor can it be said that the application was made “in any event within 3 months of the date when grounds for the application first arose”, even allowing for some indulgence to the appellants by disregarding particular time periods.
26. In response, the Ryans submit that they had carefully to consider the precise nature of the remedy which they would seek by way of judicial review. They contend that, in order to determine the time limitation period, it was necessary to consider precisely the process which was involved in the grant of permission; and that, by default, they received a decision to grant permission, but they did not receive thereby a grant of permission. They submit it was necessary for the planning authority to make a grant of permission under s.34(11)(a)(i) PDA 2000 (cited earlier), and they were not entitled to proceed with the development until they actually had a grant of planning permission. For this reason, they say what was required was that they should bring mandamus proceedings to compel the planning authority to make a grant of permission.
27. For reasons now outlined, I accept the appellants’ submission and, the logical consequences which, in law, must inevitably flow from such acceptance.
28. It is certainly the case that a decision by default is a “deemed decision”. However, this does not confer any rights to carry out a development, unless and until a grant of permission ultimately issues. In considering delay, therefore, time cannot be regarded as having commenced to run from the date of the “deemed decision”. As referred to earlier, s.34(11)(a)(i) provides that where the planning authority decides under the section to grant a permission:
“(i) … it shall make the Grant as soon as may be after the expiration of the period for the taking of an appeal”
What is necessary for Mandamus
29. An application for mandamus requires that there be a denial of a right. Until the expiration of an appeal period, therefore, no right was vested in the Ryans to call for the grant. It is well established that, in the case of an application for mandamus, the right to bring an application, cannot accrue until there has been a demand and a refusal (The State (Modern Homes) (Ireland) Limited v. Dublin Corporation [1953] I.R. 202).
30. What is necessary is that there must have been “an adequate, clear and repeated demand” for the performance of a particular act. It is unnecessary that the word ‘demand’ be there, but there must be enough, on the whole of the facts, to show to a court that, for some improper reason, compliance is withheld, and/or an indication given of an intention not to do what is required. Modern Homes demonstrates there must be a distinct “refusal” to comply with such a demand; either in direct terms, or by conduct from which a refusal can be conclusively implied. This arises from the fact that before an application can be made to the Court to compel a person or body to act in accordance with its duty, the person or body has the option of either doing, or refusing to do, that which is required. When were these requirements satisfied in the instant case?
31. Bearing in mind there must be both a demand, and an express and distinct refusal, that demand was only made in a letter of the 28th August, 2007. This was not an excessive or unreasonable delay in making a demand in the circumstances. The refusal was communicated by the County Council’s solicitor in a letter of the 17th September, 2007, and received by the appellants’ solicitors on the 18th September, 2007. The Notice of Motion seeking leave to apply for judicial review was dated the 9th November, 2007. Leave to apply for judicial review was granted on the 19th November, 2007. Thus, although the High Court judge may have erred in referring to time as starting to run as and from the 25th September, 2007, I do not think this makes a difference. Time had not expired.
The ‘Discretionary Factors’
32. Should the three ‘discretionary factors’ alluded to earlier then alter the situation in any way? The fact that an application is made within time may not always be conclusive as to whether delay will be granted. However, a claim cannot normally be defeated for delay if it is commenced within the relevant time. There would need to be some special factor such as prejudice to third parties (see judgment of Fennelly J. in Dekra Eireann Teoranta v. Minister for Environment & Local Government [2003] 2 IR 270).
33. Can any specific prejudice be shown? Again, the incongruity of the County Council’s position is significant. The Council can hardly claim that it, specifically, is prejudiced by virtue of its own neglect or default. There is, of course, the position of the notice parties herein who objected to the application. But the County Council cannot rely on any prejudice suffered by third party objectors. The County Council adopted the objectors’ submissions on this issue.
34. But, I am not convinced that the notice parties themselves suffered prejudice, at least in the sense that it should be recognised as a bar to discretionary relief. They would need to have demonstrated some clear detriment, but that evidence is lacking for reasons now explained. First, insofar as ‘prejudice’ might arise, it seems to me to derive primarily from the way in which the Act was framed, rather than any act or omission, specifically referable to the objectors’ own situation. Undoubtedly, the third party objectors, who were neighbours, would have needed to keep a very close eye on the progress of the application in order to avail of a right of appeal; but can the expiry of time in itself constitute prejudice? Second, it has not been shown that the detriment went further and led, in a clear tangible way, to a real denial of some substantive ground of objection. Third, I am not persuaded that the objectors can rely on some hypothetical inconsistency with the Local Area Plan. It is quite unclear whether the development as envisaged would be at variance from the plan, a subject addressed more specifically in considering the Court’s discretion.
The Refusal of Mandamus on Discretionary Grounds
35. Section 18(3) of PDA 2000 provides that:
“(a) When considering an application for permission under section 34, a planning authority, or the Board on appeal, shall have regard to the provisions of any local area plan prepared for the area to which the application relates, and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made. …” (emphasis added)
36. Having correctly found that the appellants’ application for planning permission did not involve a material contravention of the County Development Plan, the trial judge went on to conclude that it was actually unnecessary for the County Council to show that such an application involved a material contravention of that Plan. He held it would be sufficient to show that the application, properly made and processed, would have required the planning authority to disregard, or not to have proper regard to, the Local Area Plan. It is now accepted on all sides that there is no question of any material contravention of the County Development Plan.
37. The trial judge went on to express himself in this way:
“In considering this issue, it is paramount that the court should remain mindful of precisely what the applicants are seeking in the present case. It is clear from the legislation that regard to the Local Area Plan is an essential prerequisite for any decision to be made by the respondent. In essence, therefore, the applicants are asking the court to deem the respondent to have made a decision which, if made in the absence of the court’s assistance, would amount to an unlawful act because ipso facto no regard could be had to the Local Area Plan in a default permission. Had the respondent in the present case made a formal decision in respect of the application within the relevant time period without having regard to the Local Area Plan, that decision could readily be impugned on judicial review.”
He continued:
“It seems to me that there is an overriding need to maintain a coherent logic while interpreting the provisions of the 2000 Act, in particular, while dealing with the complex area of default planning permission. The court must remain mindful at all times of the potential consequences of a grant of default permission. In view of this, I cannot accept the submission of the applicants that this court has power to order the respondent to issue planning permission in respect of a proposal which would contravene the Local Area Plan.”
38. But these important passages raise, or more appropriately beg, a number of questions. Among these are:
(a) What would have been the consequence if the local authority did have “regard” to the Local Area Plan?
(b) What considerations would the County Council have borne in mind in making an assessment having regard to that plan?
(c) Could the absence of such a component be characterised as prejudice or detriment either by the Council or the notice parties?
The answer to all these questions, unavoidably, raises the question of whether a court may appropriately deal with, or engage in, what must necessarily be purely planning considerations. Is it the business of the courts to have regard to substantive, “merit-based”, planning considerations? As a consequence of the Aarhus Convention, both national and European law in this area may now be in a state of further development. But, on the extant legal authorities, the answer to the questions must be “no”, that it is not the business of the courts to enquire into a ‘merits’ based issue of this type.
39. In analysing the High Court judgment it must be understood that the judgment preceded the decision of this Court in Abbey Drive Developments Limited v. Kildare County Council [2009] IESC 56.
40. There, Fennelly J. speaking for this Court and, again in fact, referring to s.34(8) PDA 2000, observed, at paragraph 29:
“Article 34(8) provides for a decision in default following from the chance or accidental failure of the planning authority to make a decision within or to secure an extension of the eight-week period. For reasons already given, there could not be a deemed decision where no valid decision could have been made. It is quite another matter to say that there cannot be a deemed decision where a valid decision could have been made, although such a decision would involve an exercise of discretion in favour of the applicant. I cannot see how the courts can impose any limitation on the effect of article 34(8) except on the basis of legal power. To do otherwise would have the inevitable effect of drawing the courts into expressions of opinion on matters which properly fall within the scope of the planning authorities. The present case is a good example. It is a matter of opinion, that is to say of proper planning judgement, whether the inclusion of a very small area for community services in a housing development should be considered as within or without the definition of residential zoning. That is a matter for the planning authority or, on appeal, An Bord Pleanala to decide.”
41. Prior to the judgment of this court in Abbey Drive, Barr J. in the High Court judgment of McGovern v. Lord Mayor, Aldermen and Burgesses of the City of Dublin [1999] 2 ILRM 314, had held that a court could grant relief only in circumstances where a default planning permission to an application would, in the normal course of events, be one which, in principle, was entitled to succeed. On this conclusion, Fennelly J. pointed out in Abbey Drive that a ‘hypothetical’ issue of compliance with the Local Area Plan could not be among the discretionary factors to which a court might have regard:
“In my view, Barr J was in error in McGovern, in establishing a new category of case, beyond cases of contravention of the Development Plan or non-compliance with regulations, where a default permission cannot arise.”
42. In Maye v. Sligo Borough Council, already cited, Clarke J. in the High Court, having observed that PDA 2000 placed no limitation on the entitlement to a default permission by reference to the type of planning application involved, and pointed out that the Act did not require that the applicant must have complied with the planning regulations. He said that there was not even a hint in the legislation, that the Oireachtas took the view that there should be some limitations by reference to the type of application involved. At page 695 he warned:
“However to ask the courts to go further and form a generalised judgment about whether a particular planning permission would ordinarily be allowed would be to involve the courts in exercising the type of planning judgment which requires an expertise which the courts do not have and would involve the courts in a role not contemplated by planning legislation. It seems to me, therefore, that if there are to be limitations beyond the material contravention limitation then it is a matter for the Oireachtas to determine, as a matter of policy, what those limitations should be. Clearly, despite the many comments made by courts as to the potential unfairness of the default permission regime, the Oireachtas was not persuaded to introduce any such limitations when revisiting the issue on the enactment of the consolidation 2000 Act. The Oireachtas has, therefore, in my view, at present, set its face against such limitations. In those circumstances it would be wrong of the courts to impose them.”
43. Under s.18 PDA 2000, the Oireachtas made provision for the adoption of Local Area Plans by a planning authority. However, it is clear that such a local plan was hierarchically subordinate to the County Development Plan in this case (see s.19(2), as substituted by s.8 of the Planning & Development (Amendment) Act, 2002, and amended by the Planning and Development (Amendment) Act 2010 and the Local Government Reform Act 2014). But the legislature did not lay down some special procedure, enabling a planning authority to grant planning permission that was in material contravention of a Local Area Plan as opposed to a County Development Plan. It must be assumed, therefore, that it was within the power of local authorities to deviate from a Local Area Plan, unless such deviation was also a material contravention of a County Development Plan. It is not tenable, therefore, to conclude that the planning authorities were obliged to “have regard in a particular way” to the Local Area Plan when considering an application for permission under s.34 (see s.18(3)(a)).
44. Section 34(2)(a) PDA 2000 provides that, when making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, “regard” being had to:
“(i) the provisions of the development plan,
(ii) the provisions of any special amenity area order relating to the area,
(iii) any European site or other area prescribed for the purposes of section 10 (2)(c),
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,
(v) the matters referred to in subsection (4), and
(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder.”
45. There were therefore, a range of matters to which a planning authority was obliged to have regard when reaching a decision. The section did not specify the nature, extent, or weight of that “regard”. It is impossible for a court to determine what weight a planning authority would give, or might have given, to any one or more of the criteria. The only relevant criterion capable of legal and justiciable identification in the PDA 2000 was adherence to the County Development Plan, because of the implied prohibition against granting a permission in material contravention of that plan, save in accordance with special procedures.
46. In fact, here, it is open to question whether the application would necessarily have contravened the Local Area Plan at all. There are clear indications in the papers that the Council effectively dealt with every application on a ‘case by case’ basis given that the zoning for the area in question is “open”. As a consequence, a number of different types of land uses might have been possible. Residential development is not in form excluded. Thus, there would have been a discretion vested in the local authority in relation to this, or any other, application. The wider the discretion, the more difficult it would be for a court to impose some hard and fast regime in the absence of identifiable legal criteria. To go further involves a trespass into planning matters.
Rights under the ECHR
47. Neither the respondent, nor the notice parties, have invoked s.5 ECHRA 2003, and sought a declaration that s.34(8)(f) PDA 2000, or any other provision relevant here is incompatible with the ECHR. The Attorney General was not joined in the proceedings. With these considerations in mind, I turn finally to the High Court judge’s findings in relation to the ECHR. In support of his findings in relation to the Local Area Plan, the judge refused judicial review:
“in light of the court’s obligation to interpret the 2000 Act, in accordance with the Convention so as far as is possible, the rights of such individuals [i.e. objectors] cannot simply be ignored.” (additional words in square brackets added)
48. On this a number of points arise. There is no doubt that s.34 of the PDA 2000 extended some degree of statutory provision for the rights of objectors. Section 34(3)(b) of PDA 2000 provided that, when considering an application for permission under this section, a planning authority should have regard to:
“(b) any written submissions or observations concerning the proposed development made to it in accordance with the permission regulations by persons or bodies other than the applicant.”
49. However, that section makes no provision for the notification of a deemed decision, either to the applicant or to notice parties. It is true that such a decision can have prejudicial effects on notice parties. It is precisely those objections which led to the astringent criticisms of the provisions of the PDA 2000, referred to earlier. The question is, however, whether, on the facts of this case, what is now urged on the Court by the Council is to interpret the PDA 2000 in a manner which is compliant of ECHR requirements, or whether it goes much further? Does the interpretation, in fact, require judicial “legislation”?
50. Section 2 of the European Convention on Human Rights Act, 2003 (“the Act of 2003”) provides:
“2-(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
51. Under s.4 of the Act of 2003 the courts are enjoined to take judicial notice of Convention provisions and of declarations, decisions, advisory opinions or judgments of the European Court of Human Rights. Under s.5 it is provided:
“5.(1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.
(2) A declaration of incompatibility –
(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and
(b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights. …”
52. The Council seeks an “interpretation” of the statutory provisions in a manner in which, it now says, would be, insofar as is possible, compatible with Ireland’s obligations under the Convention provisions. The Council submits there was a denial of procedural ECHR rights, either to itself or to the third parties.
53. I am unable to conceive as to any manner in which the PDA 2000 could, on the facts of this case, be interpreted in the manner which is now urged. Under the provisions as they stood then, a situation might, arguably, arise where both Article 6(1), Article 1 of the First Protocol, and Article 8 were engaged. Arguably, what might have been in question here was a determination of civil rights affecting persons whose neighbouring homes might be adversely affected by a permitted development.
54. However, in this case, the Court is not being asked to make a declaration that the “deeming” provisions in PDA 2000 are in some manner incompatible with the Convention. The Court, rather, has been asked to engage in a significant redrafting exercise. The quotation from s.34 outlined above makes no provision for the notification of a deemed decision, either to the applicant, or to notice parties, or for either to be heard. It is not possible to construe the section so as to provide the form of protection of potential rights which the Council suggests here. In order to make that case it would be necessary to add a hypothetical proviso to s.34(8)(f) so that it would read:
“Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of the period” and then to add the words ‘save where third parties have made submissions or observations pursuant to s.4(3)(b)’.
55. To interpret the sub-section in this way would be a fundamental departure from the accepted rules of construction. I am not persuaded that what would be in question here would be a possible “interpretation”, as properly understood. The construction urged could not be said to be implied in this section, nor could it be capable of implication, even if there was supporting ECtHR case law to support such an interpretation. To treat the situation in this way would, in fact, require a declaration of incompatibility. The Court is not a legislator. What is urged for would be a process of statutory redrafting which would, in effect, fundamentally alter the effect and range of application of the sub-section. Under s.2(1) of the ECHR Act 2003, the courts are enjoined “insofar as is possible, subject to the rules of law relating to such interpretation and application” to carry out a process of interpretation in a manner compatible with the State’s obligations under the Convention provisions. These rules of law relating to interpretation and application include, inter alia, the provisions of the Constitution which prevent the courts from engaging in legislation. But there is a further obstacle. I do not think that, in the circumstances, either the County Council, or the notice parties, can demonstrate a sufficient detriment, or denial of rights, such that ECHR considerations are engaged in the first place. The Council’s own interpretation of the Local Area Plan treats the zoning of the area as ‘open’. A number of different land uses could have arisen. As indicated earlier, s.5 ECHRA was not invoked or relied on. I reserve my views on the question of Convention incompatibility of the provisions considering that the provisions of PDA 2000 under consideration here have now been amended by the Planning & Development (Amendment) Act, 2010.
56. For these reasons, I would reverse the judgment of the High Court on the “discretion” issue, and grant the declaration and mandatory orders sought.
Ryan v Clare County Council [2014] IESC 67
Judgment of Mr. Justice John MacMenamin dated the 11th day of November, 2014
1. The appellants sought a declaration and a mandatory order in the High Court to the effect that the respondent (“the County Council”) be deemed, pursuant to s.34(8)(f) of the Planning & Development Act 2000 (“PDA 2000”), to have made a decision to grant planning permission in respect of a development proposal submitted on the 2nd May, 2007, relating to works on a property on Liscannor Road, Lahinch, Co. Clare. The High Court judge held that the application for judicial review was made within time. However, he refused relief to the appellants, essentially on discretionary grounds; holding that the court was entitled to refuse relief by reason of the fact that, to allow the project to proceed without regard to the Local Area Development Plan for Lahinch would be an unlawful exercise of the court’s discretion.
2. The appellants (“The Ryans”) obviously do not argue with the judge’s finding on the time issue which was in their favour, but now submit that the judge erred in relation to the exercise of his discretion refusing relief. They contend the High Court was actually under a duty to make a declaration, and to grant a mandatory order in circumstances described later in this judgment. The issues raised in the appeal herein concern matters which pre-date the amendment of PDA 2000 by the Planning & Development Amendment Act 2010 (PDA 2010), brought into effect by the Planning and Development (Amendment) Act 2010 (Commencement) Order (S.I. No. 132 of 2011) on March 23, 2011 (see particularly s.23 of the amending Act). The judgment also pre-dates the judgment of this court in Abbey Drive Developments Ltd. v. Kildare County Council [2010] 1 ILRM 187. As well as hearing comprehensive submissions from the main parties, counsel on behalf of the first named notice party made submissions seeking to invoke rights under Article 6 and 8 of ECHR, which were adopted by Mr. James Connolly, S.C. who appeared on behalf of the County Council, and the solicitor acting for the second named notice party. The first issue which falls for consideration is the time-limitation issue.
The Relevant Statutory Position
3. It is important to make clear at the outset that it was common case that the relevant time limit for bringing this application for judicial review was the three month period prescribed in Order 84, Rule 21 RSC, as it stood in 2007. Thus, while other statutory limits are now considered in this judgment, it is by way of context only. As the statute law stood at the time of the application for planning permission, s.34(8)(a) of the PDA 2000 prescribed a time limit of 8 weeks, within which a County Council should make an initial decision on a planning application. Failing a decision being made, s.34(8)(f) came into operation, and a “default planning permission” might arise. Insofar as is relevant, s.34(8)(f) PDA 2000 provides that, subject to a range of conditions, not material here;
“(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.” (emphasis added)
4. As the Council failed to make a decision, the appellants sought both a declaration and an order of mandamus directing the County Council to grant planning permission in respect of the development of two two-storey houses, pursuant to s.38(11) of the PDA 2000. As this judgment concerns a legal issue of some historical controversy, some further background description is necessary.
Default Planning Permission
5. In 2007, a failure by a local authority to make a decision resulted in the consequence that a decision to grant was deemed to have been made, regardless of any merits and objections. The operation of what were termed ‘default planning permissions’ was much criticised by judges, legal scholars, and commentators. These criticisms had considerable substance. The system created a disjunction between cause and effect. The ‘cause’ was that a planning authority had failed, or neglected, to perform its duty to make a decision which might be to grant, to refuse or, alternatively, to grant permission subject to conditions. Instead, there was simply a “deemed decision” to grant. The planning authority suffered no sanction for having failed to perform its duty. In fact, the effect was only felt by objectors, very often (as here) neighbours, such as the notice parties herein, who might have to live with the consequence that a planning application, not subject to any conditions, was “deemed” to have been the subject of a favourable decision by the local authority. The rationale for the existence of such provision is not easy to comprehend. Why should the victims of maladministration, be confined to those individuals who had no responsibility for what went wrong, and who had most to lose in terms of amenities or property values. Perhaps, the public at large might be affected? In Planning & Development Law, 2nd Ed., (Thompson Round Hall, 2007), Garrett Simons, S.C. described the provision as it then stood in these terms:
“The existence of this default mechanism is indefensible. There is nothing to be said in its favour: it is inherently unfair; unpopular with judges; disproportionate to the mischief which it is intended to remedy; and inconsistent with other aspects of the PDA 2000.”
6. In expressing these sentiments, the author was doing no more than reflecting views which Blayney J. had expressed, perhaps somewhat less trenchantly, in Molloy v. Dublin County Council [1990] 1 I.R. 90, at 97. There that judge pointed out:
“The purpose (of the default mechanism) is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicate its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because a permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted. It would seem to be a relatively simple matter to devise some alternative sanction which would achieve the same desirable purpose of having planning applications expeditiously dealt with, but which would not have the same potentially serious consequence for the community in the event of a failure on the part of a planning authority through error or inadvertence to comply with the statutory time limit, and I would hope that the legislature might give serious consideration to this suggestion.”
7. Similar reservations were expressed by Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678, an authority referred to later. Both Abbey Drive, referred to earlier, and Maye are relevant to this appeal, because both lay emphasis on the fact that, whatever reservations one might feel on the law as it then stood, judges cannot be legislators, and should not impermissibly resort to judicial discretion, in order to avoid the legal consequence of a default permission.
8. A further issue, also touched on later in this judgment, is whether the section, as it then stood, involved a “determination” of civil rights, within the meaning of Article 6(1) of the European Convention on Human Rights (“ECHR”), property rights under Article 1 of the First Protocol to the ECHR; or in some cases, privacy rights under Article 8 of the ECHR. All of these considerations, some commentators suggested, would have necessitated a fair hearing on the question of whether or not actually to grant such a permission involving a balancing of the rights and interests involved.
9. Be that as it may, the duty of this Court is to apply the law as it stood at the time of the relevant planning application. Doubtless, based on the concerns just described, the learned trial judge declined to grant relief.
Issues for Determination
10. The issues for determination in this appeal include:
• Whether the appellants’ application for leave to apply for judicial review was made ‘promptly’, under the rules of court. This invites analysis of when, precisely, the grounds for the application first arose;
• Whether the appellants are precluded from bringing their application for, or obtaining relief by way of, judicial review, on the ground of delay?;
• Whether as a matter of discretion, this application for judicial review should be refused by reference to the possible rights of the notice parties?;
• Whether, in the absence of a finding that the application involved a material contravention of the development plan, the appellants were necessarily entitled, as of right, to obtain by default a decision to grant planning permission with respect to their planning application?;
• Whether the appellants’ application for planning permission in fact involved a breach of the local area plan applicable to the locality of the proposed development?;
• If there was such a breach of the local area plan, whether any such breach was material or sufficient to warrant declining relief?;
• Whether, regardless of materiality, the statutory requirements, having regard to such local plans, precluded the High Court from directing the respondent to issue a default planning permission in respect of a proposal which it was suggested might not accord with the provisions of the lap?.
11. These questions are somewhat interwoven, and thus may be conveniently considered under three broad headings; first, the time/remedy issue; second, judicial discretion; and third, insofar as it properly arises, the rights of the notice parties. The notice parties participated in the appeal to the extent outlined earlier.
12. Some indication of the degree of ‘linkage’ between the issues can be gleaned from the fact that the time limits are, in fact, governed by the appropriate remedy; and the issue of judicial discretion (said to have arisen by reason of possible non-compliance with the Local Area Plan), was, at least, informed by the High Court judge’s concern as to the potential for the denial of rights of the public and third party objectors in a default permission.
The Time/Remedy Issue
13. Counsel for the County Council submits that the application now made for mandamus was made outside the time prescribed by Order 84, Rule 21 RSC. That Rule prescribes that applications shall be made within three months from the date when grounds for the application first arose. It is necessary to set out the chronology and circumstances from the planning application to the leave application.
Chronology
14. The planning application was made in writing on the 2nd May, 2007. The Council accepts that, apparently for technical reasons which remain opaque, it failed to make a decision within the statutory period of eight weeks from the date of receipt of the planning application. The statutory period for a decision on the planning application, therefore, expired on the 26th June, 2007.
15. As the application for leave for judicial review was not brought until the 19th November, 2007, the County Council at first made the case that the application was out of time (insofar as the matter might have been governed by PDA 2000), or, alternatively, relied on delay claiming the application was out of time under the Rules of the Superior Courts. It is accepted now that the matter is governed by the Rules, and not by the provisions of PDA 2000. Both these time limits will be considered in the context of delay.
The Form of Remedy
16. That time issue is linked to the form of relief appropriate in applications of this type. The appellants sought mandatory relief. This, of course, would necessitate a determination that the respondent County Council owed a legal duty to the appellant. This submission requires the Court to consider whether what is in question under s.34(8) is part of a two-step process comprised, first, of a failure to decide, and then, second, requiring a formal demand to comply with a statutory duty, or whether, alternatively, the failure of the County Council to make a decision was, ipso facto, a breach of duty, requiring no such formal legal demand. The appellants say it is a two step process: that the County Council, having failed to make a decision permitting the project, must then be compelled, but on a formal demand, to make a grant of planning permission pursuant to s.34(11)(a) PDA 2000. That subsection provides:
“(11)(a) Where the planning authority decides under this section to grant a permission-
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals-
(I) it is withdrawn, or
(II) it is dismissed by the Board pursuant to section 133 or 138 , or
(III) in relation to it a direction is given to the authority by the Board pursuant to section 139 , and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.” (emphasis added)
17. Sections 133, 138 and 139 of the Act are not material to consideration. At first sight therefore, there is both a decision to grant permission, and then it is followed by the making of a grant. One can, therefore, reach a tentative hypothesis this was a two step process. An entitlement to carry out a development would appear to follow on from a grant, not from the primary decision. The permission is simply what it says, a decision to grant permission; it is the grant which, from a planning law perspective, renders lawful the carrying out of the development. Is this hypothesis confirmed by further analysis?
18. In what follows one cannot avoid observing a certain incongruity in the case. The County Council relies on its own default in order to place a duty on the appellants. I emphasise that it was ultimately accepted that the time limitation was that set out in the Rules of the Superior Courts, that is, three months.
19. By statute, (insofar as a time limit under PDA 2000 might have applied), the time permitted for judicial review, by way of certiorari, of a decision by a planning authority would be eight weeks; (see s.50(3) PDA 2000). The County Council’s case was that its duty was simply to make a decision on the application by the 26th June, 2007, and thus, whether under statute or the Rules, the time ran from then. The Council points to the fact that the appellants’ planning consultant deposed in affidavit to having contacted the Council’s planning department on the 27th June, 2007 enquiring as to the outcome of the planning application, and that he was advised that no decision had issued by that date. But was there ever in fact even a primary decision in the sense intended by the statute?
20. Relying on s.34(11)(a) quoted above, the Ryans contend that it was not until the 24th July, 2007, (being the expiry of the statutory 4 week time limit for the bringing of an appeal) that a right even to call for the grant of a permission by default was vested in them. In response, the Council contends that, by the afternoon of the 3rd July, 2007, the appellants were aware through their lawyers, that the Council had not made a decision on the planning application within the 8 week statutory period specified by s.34(8)(a) PDA 2000. But, the appellants rejoin, the expiry of the four week ‘appeal period’, prima facie, can not give rise to a grant of permission either
21. In summary then, the Council at first contended in this appeal that the “grounds for the application” for a judicial review arose first, either on the 26th June, 2007, being the date of its failure to carry out the relevant duty which was amenable to challenge by judicial review; or alternatively, its failure was either, (a) to issue to the appellants a notification of a decision to grant planning permission by default within 3 working days of the 26th June, 2007, (see s.34(8)(f) PDA 2000; and Article 31 of the Planning & Development Regulations 2001 (S.I. No. 600 of 2001)), (as amended by the Planning and Development Regulations 2006 (S.I. No. 685 of 2006)), which provide that notification of a decision by a planning authority in respect of an application shall be made within three working days of the day of the decision); or, (b), to make the grant of planning permission to the appellants after the expiry of the statutory 4 weeks for an appeal, that is, the 24th July, 2007 (see s.34(11)(a)(i) PDA 2000). In either event, Council contended, the Ryans were out of time, as a leave application was not made until the 19th November, 2007.
22. Alternatively, the Council relied on a further line of defence still relevant on the general issue of delay. It said that the Court should also have regard to the fact that, had (hypothetically) a decision either to grant or refuse the application for permission actually been made on the 26th June, 2007, then, pursuant to the provisions of s.50(4)(a)(i) PDA 2000, the appellants, (assuming the matter has been governed by PDA 2000), in the ordinary course of events, would have had to make an application for leave to apply for judicial review within a period of 8 weeks, beginning on the date of the decision (i.e. by 20th August, 2007). The Council submits that, where a planning authority decides under s.38 of PDA 2000 to grant a permission, the period for the taking of an appeal to An Bord Pleanála from that decision would have expired on the 23rd July, 2007; so that, even were the court to adopt an ‘expansive’ approach, insofar as the claim for mandamus is concerned, the Council’s obligation under s.34(11)(a)(i) was to make a grant of permission “as soon as may be” after the expiration of the period for the taking of an appeal (i.e. as and from the 23rd July, 2007). It is said this ‘crystallised’ the period for judicial review time purposes.
23. Thus, the Council submits, on the assumption that time began to run against the applicants from any one of those points, and even allowing that it was for a period of 3 months under the Rules for bringing judicial review proceedings, that time must have expired on the 22nd October, 2007. But the application for leave was not made until the 19th November, 2007. Was it out of time?
The Discretionary Issues
24. The County Council also looks to three “discretionary” issues which form part of the circumstances which, it says, should also go to the manner in which the court’s discretion should be exercised. The Council says that, added to, or as a component of, the elapse of time, any one, or all, of the following three considerations would have warranted refusal of relief:
(i) First, while the Council’s solicitors advised the Ryans’ solicitors to write to them on the 9th July, 2007; more than 7 weeks expired thereafter. It was only on the 28th August, 2007 that the appellants’ solicitors first wrote to the County Solicitor asserting that a default permission had arisen. The County Council did not receive them until 30th August, 2007. It is said there was delay on this basis.
(ii) Second, when the application was opened before the High Court in the full judicial review hearing, counsel for the Ryans appraised the court that a deliberate decision had, in fact, been taken not to seek any response from the Council until after the expiration of the period allowed to notice parties for bringing an appeal to An Bord Pleanála as provided under s.34(11) PDA 2000. The County Council says this was a conscious and deliberate “inaction” on the appellants’ part in order to go beyond the expiration of any potential entitlement that the notice party – objector might have had.
(iii) Third, it was readily apparent from a letter from the County Council’s solicitors dated the 17th September, 2007, that the Council was not amenable to being regarded as having actually granted a default permission to the applicants on the 26th June, 2007; yet, despite that, the applicants allowed a further period, in excess of two months to expire before the application was made to the High Court for leave to apply for judicial review.
25. Taking these additional discretionary factors into account, it is said, that having regard to the provisions of Order 84, Rule 21(1) of the Rules of the Superior Courts, the appellants cannot be said to have met their primary obligation of having made the application “promptly”, nor can it be said that the application was made “in any event within 3 months of the date when grounds for the application first arose”, even allowing for some indulgence to the appellants by disregarding particular time periods.
26. In response, the Ryans submit that they had carefully to consider the precise nature of the remedy which they would seek by way of judicial review. They contend that, in order to determine the time limitation period, it was necessary to consider precisely the process which was involved in the grant of permission; and that, by default, they received a decision to grant permission, but they did not receive thereby a grant of permission. They submit it was necessary for the planning authority to make a grant of permission under s.34(11)(a)(i) PDA 2000 (cited earlier), and they were not entitled to proceed with the development until they actually had a grant of planning permission. For this reason, they say what was required was that they should bring mandamus proceedings to compel the planning authority to make a grant of permission.
27. For reasons now outlined, I accept the appellants’ submission and, the logical consequences which, in law, must inevitably flow from such acceptance.
28. It is certainly the case that a decision by default is a “deemed decision”. However, this does not confer any rights to carry out a development, unless and until a grant of permission ultimately issues. In considering delay, therefore, time cannot be regarded as having commenced to run from the date of the “deemed decision”. As referred to earlier, s.34(11)(a)(i) provides that where the planning authority decides under the section to grant a permission:
“(i) … it shall make the Grant as soon as may be after the expiration of the period for the taking of an appeal”
What is necessary for Mandamus
29. An application for mandamus requires that there be a denial of a right. Until the expiration of an appeal period, therefore, no right was vested in the Ryans to call for the grant. It is well established that, in the case of an application for mandamus, the right to bring an application, cannot accrue until there has been a demand and a refusal (The State (Modern Homes) (Ireland) Limited v. Dublin Corporation [1953] I.R. 202).
30. What is necessary is that there must have been “an adequate, clear and repeated demand” for the performance of a particular act. It is unnecessary that the word ‘demand’ be there, but there must be enough, on the whole of the facts, to show to a court that, for some improper reason, compliance is withheld, and/or an indication given of an intention not to do what is required. Modern Homes demonstrates there must be a distinct “refusal” to comply with such a demand; either in direct terms, or by conduct from which a refusal can be conclusively implied. This arises from the fact that before an application can be made to the Court to compel a person or body to act in accordance with its duty, the person or body has the option of either doing, or refusing to do, that which is required. When were these requirements satisfied in the instant case?
31. Bearing in mind there must be both a demand, and an express and distinct refusal, that demand was only made in a letter of the 28th August, 2007. This was not an excessive or unreasonable delay in making a demand in the circumstances. The refusal was communicated by the County Council’s solicitor in a letter of the 17th September, 2007, and received by the appellants’ solicitors on the 18th September, 2007. The Notice of Motion seeking leave to apply for judicial review was dated the 9th November, 2007. Leave to apply for judicial review was granted on the 19th November, 2007. Thus, although the High Court judge may have erred in referring to time as starting to run as and from the 25th September, 2007, I do not think this makes a difference. Time had not expired.
The ‘Discretionary Factors’
32. Should the three ‘discretionary factors’ alluded to earlier then alter the situation in any way? The fact that an application is made within time may not always be conclusive as to whether delay will be granted. However, a claim cannot normally be defeated for delay if it is commenced within the relevant time. There would need to be some special factor such as prejudice to third parties (see judgment of Fennelly J. in Dekra Eireann Teoranta v. Minister for Environment & Local Government [2003] 2 IR 270).
33. Can any specific prejudice be shown? Again, the incongruity of the County Council’s position is significant. The Council can hardly claim that it, specifically, is prejudiced by virtue of its own neglect or default. There is, of course, the position of the notice parties herein who objected to the application. But the County Council cannot rely on any prejudice suffered by third party objectors. The County Council adopted the objectors’ submissions on this issue.
34. But, I am not convinced that the notice parties themselves suffered prejudice, at least in the sense that it should be recognised as a bar to discretionary relief. They would need to have demonstrated some clear detriment, but that evidence is lacking for reasons now explained. First, insofar as ‘prejudice’ might arise, it seems to me to derive primarily from the way in which the Act was framed, rather than any act or omission, specifically referable to the objectors’ own situation. Undoubtedly, the third party objectors, who were neighbours, would have needed to keep a very close eye on the progress of the application in order to avail of a right of appeal; but can the expiry of time in itself constitute prejudice? Second, it has not been shown that the detriment went further and led, in a clear tangible way, to a real denial of some substantive ground of objection. Third, I am not persuaded that the objectors can rely on some hypothetical inconsistency with the Local Area Plan. It is quite unclear whether the development as envisaged would be at variance from the plan, a subject addressed more specifically in considering the Court’s discretion.
The Refusal of Mandamus on Discretionary Grounds
35. Section 18(3) of PDA 2000 provides that:
“(a) When considering an application for permission under section 34, a planning authority, or the Board on appeal, shall have regard to the provisions of any local area plan prepared for the area to which the application relates, and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made. …” (emphasis added)
36. Having correctly found that the appellants’ application for planning permission did not involve a material contravention of the County Development Plan, the trial judge went on to conclude that it was actually unnecessary for the County Council to show that such an application involved a material contravention of that Plan. He held it would be sufficient to show that the application, properly made and processed, would have required the planning authority to disregard, or not to have proper regard to, the Local Area Plan. It is now accepted on all sides that there is no question of any material contravention of the County Development Plan.
37. The trial judge went on to express himself in this way:
“In considering this issue, it is paramount that the court should remain mindful of precisely what the applicants are seeking in the present case. It is clear from the legislation that regard to the Local Area Plan is an essential prerequisite for any decision to be made by the respondent. In essence, therefore, the applicants are asking the court to deem the respondent to have made a decision which, if made in the absence of the court’s assistance, would amount to an unlawful act because ipso facto no regard could be had to the Local Area Plan in a default permission. Had the respondent in the present case made a formal decision in respect of the application within the relevant time period without having regard to the Local Area Plan, that decision could readily be impugned on judicial review.”
He continued:
“It seems to me that there is an overriding need to maintain a coherent logic while interpreting the provisions of the 2000 Act, in particular, while dealing with the complex area of default planning permission. The court must remain mindful at all times of the potential consequences of a grant of default permission. In view of this, I cannot accept the submission of the applicants that this court has power to order the respondent to issue planning permission in respect of a proposal which would contravene the Local Area Plan.”
38. But these important passages raise, or more appropriately beg, a number of questions. Among these are:
(a) What would have been the consequence if the local authority did have “regard” to the Local Area Plan?
(b) What considerations would the County Council have borne in mind in making an assessment having regard to that plan?
(c) Could the absence of such a component be characterised as prejudice or detriment either by the Council or the notice parties?
The answer to all these questions, unavoidably, raises the question of whether a court may appropriately deal with, or engage in, what must necessarily be purely planning considerations. Is it the business of the courts to have regard to substantive, “merit-based”, planning considerations? As a consequence of the Aarhus Convention, both national and European law in this area may now be in a state of further development. But, on the extant legal authorities, the answer to the questions must be “no”, that it is not the business of the courts to enquire into a ‘merits’ based issue of this type.
39. In analysing the High Court judgment it must be understood that the judgment preceded the decision of this Court in Abbey Drive Developments Limited v. Kildare County Council [2009] IESC 56.
40. There, Fennelly J. speaking for this Court and, again in fact, referring to s.34(8) PDA 2000, observed, at paragraph 29:
“Article 34(8) provides for a decision in default following from the chance or accidental failure of the planning authority to make a decision within or to secure an extension of the eight-week period. For reasons already given, there could not be a deemed decision where no valid decision could have been made. It is quite another matter to say that there cannot be a deemed decision where a valid decision could have been made, although such a decision would involve an exercise of discretion in favour of the applicant. I cannot see how the courts can impose any limitation on the effect of article 34(8) except on the basis of legal power. To do otherwise would have the inevitable effect of drawing the courts into expressions of opinion on matters which properly fall within the scope of the planning authorities. The present case is a good example. It is a matter of opinion, that is to say of proper planning judgement, whether the inclusion of a very small area for community services in a housing development should be considered as within or without the definition of residential zoning. That is a matter for the planning authority or, on appeal, An Bord Pleanala to decide.”
41. Prior to the judgment of this court in Abbey Drive, Barr J. in the High Court judgment of McGovern v. Lord Mayor, Aldermen and Burgesses of the City of Dublin [1999] 2 ILRM 314, had held that a court could grant relief only in circumstances where a default planning permission to an application would, in the normal course of events, be one which, in principle, was entitled to succeed. On this conclusion, Fennelly J. pointed out in Abbey Drive that a ‘hypothetical’ issue of compliance with the Local Area Plan could not be among the discretionary factors to which a court might have regard:
“In my view, Barr J was in error in McGovern, in establishing a new category of case, beyond cases of contravention of the Development Plan or non-compliance with regulations, where a default permission cannot arise.”
42. In Maye v. Sligo Borough Council, already cited, Clarke J. in the High Court, having observed that PDA 2000 placed no limitation on the entitlement to a default permission by reference to the type of planning application involved, and pointed out that the Act did not require that the applicant must have complied with the planning regulations. He said that there was not even a hint in the legislation, that the Oireachtas took the view that there should be some limitations by reference to the type of application involved. At page 695 he warned:
“However to ask the courts to go further and form a generalised judgment about whether a particular planning permission would ordinarily be allowed would be to involve the courts in exercising the type of planning judgment which requires an expertise which the courts do not have and would involve the courts in a role not contemplated by planning legislation. It seems to me, therefore, that if there are to be limitations beyond the material contravention limitation then it is a matter for the Oireachtas to determine, as a matter of policy, what those limitations should be. Clearly, despite the many comments made by courts as to the potential unfairness of the default permission regime, the Oireachtas was not persuaded to introduce any such limitations when revisiting the issue on the enactment of the consolidation 2000 Act. The Oireachtas has, therefore, in my view, at present, set its face against such limitations. In those circumstances it would be wrong of the courts to impose them.”
43. Under s.18 PDA 2000, the Oireachtas made provision for the adoption of Local Area Plans by a planning authority. However, it is clear that such a local plan was hierarchically subordinate to the County Development Plan in this case (see s.19(2), as substituted by s.8 of the Planning & Development (Amendment) Act, 2002, and amended by the Planning and Development (Amendment) Act 2010 and the Local Government Reform Act 2014). But the legislature did not lay down some special procedure, enabling a planning authority to grant planning permission that was in material contravention of a Local Area Plan as opposed to a County Development Plan. It must be assumed, therefore, that it was within the power of local authorities to deviate from a Local Area Plan, unless such deviation was also a material contravention of a County Development Plan. It is not tenable, therefore, to conclude that the planning authorities were obliged to “have regard in a particular way” to the Local Area Plan when considering an application for permission under s.34 (see s.18(3)(a)).
44. Section 34(2)(a) PDA 2000 provides that, when making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, “regard” being had to:
“(i) the provisions of the development plan,
(ii) the provisions of any special amenity area order relating to the area,
(iii) any European site or other area prescribed for the purposes of section 10 (2)(c),
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,
(v) the matters referred to in subsection (4), and
(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder.”
45. There were therefore, a range of matters to which a planning authority was obliged to have regard when reaching a decision. The section did not specify the nature, extent, or weight of that “regard”. It is impossible for a court to determine what weight a planning authority would give, or might have given, to any one or more of the criteria. The only relevant criterion capable of legal and justiciable identification in the PDA 2000 was adherence to the County Development Plan, because of the implied prohibition against granting a permission in material contravention of that plan, save in accordance with special procedures.
46. In fact, here, it is open to question whether the application would necessarily have contravened the Local Area Plan at all. There are clear indications in the papers that the Council effectively dealt with every application on a ‘case by case’ basis given that the zoning for the area in question is “open”. As a consequence, a number of different types of land uses might have been possible. Residential development is not in form excluded. Thus, there would have been a discretion vested in the local authority in relation to this, or any other, application. The wider the discretion, the more difficult it would be for a court to impose some hard and fast regime in the absence of identifiable legal criteria. To go further involves a trespass into planning matters.
Rights under the ECHR
47. Neither the respondent, nor the notice parties, have invoked s.5 ECHRA 2003, and sought a declaration that s.34(8)(f) PDA 2000, or any other provision relevant here is incompatible with the ECHR. The Attorney General was not joined in the proceedings. With these considerations in mind, I turn finally to the High Court judge’s findings in relation to the ECHR. In support of his findings in relation to the Local Area Plan, the judge refused judicial review:
“in light of the court’s obligation to interpret the 2000 Act, in accordance with the Convention so as far as is possible, the rights of such individuals [i.e. objectors] cannot simply be ignored.” (additional words in square brackets added)
48. On this a number of points arise. There is no doubt that s.34 of the PDA 2000 extended some degree of statutory provision for the rights of objectors. Section 34(3)(b) of PDA 2000 provided that, when considering an application for permission under this section, a planning authority should have regard to:
“(b) any written submissions or observations concerning the proposed development made to it in accordance with the permission regulations by persons or bodies other than the applicant.”
49. However, that section makes no provision for the notification of a deemed decision, either to the applicant or to notice parties. It is true that such a decision can have prejudicial effects on notice parties. It is precisely those objections which led to the astringent criticisms of the provisions of the PDA 2000, referred to earlier. The question is, however, whether, on the facts of this case, what is now urged on the Court by the Council is to interpret the PDA 2000 in a manner which is compliant of ECHR requirements, or whether it goes much further? Does the interpretation, in fact, require judicial “legislation”?
50. Section 2 of the European Convention on Human Rights Act, 2003 (“the Act of 2003”) provides:
“2-(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
51. Under s.4 of the Act of 2003 the courts are enjoined to take judicial notice of Convention provisions and of declarations, decisions, advisory opinions or judgments of the European Court of Human Rights. Under s.5 it is provided:
“5.(1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.
(2) A declaration of incompatibility –
(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and
(b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights. …”
52. The Council seeks an “interpretation” of the statutory provisions in a manner in which, it now says, would be, insofar as is possible, compatible with Ireland’s obligations under the Convention provisions. The Council submits there was a denial of procedural ECHR rights, either to itself or to the third parties.
53. I am unable to conceive as to any manner in which the PDA 2000 could, on the facts of this case, be interpreted in the manner which is now urged. Under the provisions as they stood then, a situation might, arguably, arise where both Article 6(1), Article 1 of the First Protocol, and Article 8 were engaged. Arguably, what might have been in question here was a determination of civil rights affecting persons whose neighbouring homes might be adversely affected by a permitted development.
54. However, in this case, the Court is not being asked to make a declaration that the “deeming” provisions in PDA 2000 are in some manner incompatible with the Convention. The Court, rather, has been asked to engage in a significant redrafting exercise. The quotation from s.34 outlined above makes no provision for the notification of a deemed decision, either to the applicant, or to notice parties, or for either to be heard. It is not possible to construe the section so as to provide the form of protection of potential rights which the Council suggests here. In order to make that case it would be necessary to add a hypothetical proviso to s.34(8)(f) so that it would read:
“Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of the period” and then to add the words ‘save where third parties have made submissions or observations pursuant to s.4(3)(b)’.
55. To interpret the sub-section in this way would be a fundamental departure from the accepted rules of construction. I am not persuaded that what would be in question here would be a possible “interpretation”, as properly understood. The construction urged could not be said to be implied in this section, nor could it be capable of implication, even if there was supporting ECtHR case law to support such an interpretation. To treat the situation in this way would, in fact, require a declaration of incompatibility. The Court is not a legislator. What is urged for would be a process of statutory redrafting which would, in effect, fundamentally alter the effect and range of application of the sub-section. Under s.2(1) of the ECHR Act 2003, the courts are enjoined “insofar as is possible, subject to the rules of law relating to such interpretation and application” to carry out a process of interpretation in a manner compatible with the State’s obligations under the Convention provisions. These rules of law relating to interpretation and application include, inter alia, the provisions of the Constitution which prevent the courts from engaging in legislation. But there is a further obstacle. I do not think that, in the circumstances, either the County Council, or the notice parties, can demonstrate a sufficient detriment, or denial of rights, such that ECHR considerations are engaged in the first place. The Council’s own interpretation of the Local Area Plan treats the zoning of the area as ‘open’. A number of different land uses could have arisen. As indicated earlier, s.5 ECHRA was not invoked or relied on. I reserve my views on the question of Convention incompatibility of the provisions considering that the provisions of PDA 2000 under consideration here have now been amended by the Planning & Development (Amendment) Act, 2010.
56. For these reasons, I would reverse the judgment of the High Court on the “discretion” issue, and grant the declaration and mandatory orders sought.
The State (Pine Valley Developments Ltd) v Dublin County Council
1981 No. 156
Supreme Court
5 February 1982
[1982] I.L.R.M. 169
(Walsh J, Henchy and Hederman JJ)
WALSH J
(Hederman J concurring) delivered his judgment on 5 February 1982 saying: On 16 July 1980 the prosecutor company applied to the Dublin County Council for planning approval on foot of an application which related to a site at Newlands in Clondalkin, Co. Dublin, in accordance with plans and particulars lodged by the applicant. This application for planning approval was a sequel to and relied upon a purported outline permission granted by the Minister for the Environment to the prosecutor company on 10 March 1977. The purported outline permission granted by the Minister was the result of an appeal taken by the prosecutors against the decision of the County Council in June 1976 to refuse an application for planning approval which had been made to them on 26 April 1976. Stated briefly, the reasons for that refusal were that the site was located in the green belt and that the development would contravene the development plan. It was also objected that public piped sewage services were not available and that a proposed private treatment plant was not acceptable to the planning authority.
The prosecutors appeal to the Minister was in form an appeal against this refusal but the Ministers decision took the form of granting an outline planning permission rather than dealing with the application as it was made to the planning authority.
S.26 of the Local Government (Planning and Development) Act, 1963 provides at subs. (5)(b) that where an appeal is brought under that subsection from a decision of a planning authority and is not withdrawn the Minister shall determine the application as if it had been made to him in the first instance and his decision shall operate to annul the decision of the planning authority as from the time it was given. That is the procedure which the prosecutors availed of for the purpose of appealing against the refusal of the County Council.
S.26, subs. (3)(a), prohibits a planning authority from granting permission under that section where the development concerned would contravene materially the development plan or any special amenity order relating to the area save with the consent of the Minister. Paragraph (b) provides that where an application is made to the Minister for his consent for such a breach of the development plan any person may furnish the Minister in writing his objection to the grant of the consent and required the Minister before granting the consent to *171 consider any such objections which he received within 21 days after the receipt of the application. In the present case the proposed development would have contravened in a material way the development plan. The County Council refused the application and did not seek to apply to the Minister for any permission to act in breach of the plan. The outline planning permission granted by the Minister on the appeal contravened materially the development plan.
The question which immediately arises is whether the Minister on the hearing of such an appeal had any power to grant a permission which would amount to a contravention of the development plan. The argument in favour of the Ministers action on this point is that as the Minister could authorise the Council to do it, he could authorise himself to do it. On the other hand it is clear that the Oireachtas removed from the discretion of the planning authority a power to contravene the plan unless it was authorised by the Minister. That in itself is a clear indication of the seriousness with which the Oireachtas viewed any such element. One would have expected therefore that if the Oireachtas had ever contemplated giving the Minister any such power in effect at first instance the legislation would have said so. Because of the fact that the statute gave the Minister a particular jurisdiction with reference to any such application to contravene the development plan by the planning authority but was silent with regard to any power to do so on his own initiative on appeal where no such application had been made I am satisfied that the statute never contemplated and cannot be construed as meaning that the Minister had such a power. The form of appeal contemplated is in effect an appeal by way of re-hearing. So far as the breach of the development plan is concerned the original hearing by the planning authority had not involved any application to the Minister for permission to contravene the plan. It appears to me therefore that the Minister in hearing the appeal as if it were being heard at first instance was in no better position than was the planning authority save that he was free to arrive at a different decision but only a decision within the contemplation of the statute. As was pointed out in the decision of this Court in Murphy v The Minister for Local Government [1972] IR 215, the Minister as such appelate tribunal is not exercising any of the executive functions of the State but is simply exercising statutory functions conferred upon a persona designata. He has no function in the matter outside those either expressly or by necessary implication conferred on him by the statute. In my opinion there is nothing in the statute which can be found to substantiate the view that such power was expressly or by necessary implication conferred upon the Minister. I am satisfied that the outline planning permission granted by the Minister was made without jurisdiction in so far as it permitted contraventions of the development plan and was therefore ultra vires and of no legal effect.
The present proceedings were brought for the purpose of obtaining an order from the court to compel the planning authority to grant planning approval in conformity with the outline planning permission granted by the Minister. Notwithstanding the order of the Minister the provisions of s. 26(3) of the Act of 1963 still bind the planning authority and they are not entitled to grant any planning permission which would materially contravene the development plan in the absence of a permission to that effect granted by the Minister upon *172 application made by them. As no such application was made and as no valid permission to that effect was ever granted by the Minister the planning authority cannot be compelled to violate the provisions of the Act.
The prosecutors have sought to rely upon the default procedure provided for by s.26, subs. (4) of the Act of 1963. That provides that where a planning authority either does not make any decision or having made the decision does not give notice to the applicant of its decision within a period of two months the permission sought should be regarded as having been given on the last day of the two-month period.
It appears to me to be quite clear that the section is included in the Act as an indication by the Oireachtas that planning authorities were to act within a reasonable time. While it might be thought that perhaps in some cases a period of two months was somewhat short, nonetheless that is the period which applies. It means that where a valid application is made to a planning authority and when such application is in accordance with the permission regulations and all regulations are complied with and the planning authority does not give notice of its decision (if any) within the two-month period the permission sought shall be regarded as having been granted. This quite obviously contemplates a valid application and one which is manifestly not permitted by the Act. The present application, in as much as it is an application for a permission which the planning authority has no statutory or other power to grant because to do so would amount to a contravention of their own development plan, is clearly not within the subsection. In my view, the default procedure does not operate to produce an effect which is equivalent to the granting of permission in a case where the application is itself for something which is prohibited by the statute. The principle of the decision of this Court in Monaghan UDC v Alf-A-Bet Promotions Ltd (24 March 1980) is relevant in the present context. An order of mandamus cannot issue to compel the planning authority in the present case to consider an application to do something which would be illegal if done.
It is further argued on behalf of the prosecutors that the planning authority should have moved by way of certiorari or otherwise to quash the Ministers decision as one made without jurisdiction. The argument goes on then to submit that in a case where no such move was made within the time limited by the Act of 1963, namely two months, that the order stands. It is correct that the ruling of the Minister stands, but it stands as it is. If it is one which is ultra vires and therefore void on that account it cannot be relied upon as a ground for seeking to compel any other person or body to do something which is illegal. Being an outline planning permission, or purporting to be such, it would in any case have had to be followed up by the normal application for full development. That is the point to which the present case has got. If the Minister had done what he did in the context of a full application then it is very probable that the prosecutors could have gone ahead and built in accordance with his permission unless and until the planning authority, by appropriate legal action open to them, annulled the Ministers order or otherwise restrained the prosecutors from proceeding. However, that is not this case.
In the result therefore I am of opinion that the order of the High Court ought to *173 be set aside and the cause shown be allowed. I would allow the appeal.
Henchy J:
Pine Valley Developments Ltd (hereinafter the developers) wish to develop certain lands near Newlands Cross, Naas Road, Clondalkin, Co. Dublin for an industrial estate (i.e. factories, warehouses and offices). For such development, permission under the Local Government (Planning and Development) Acts, 1963 and 1976, had to be got from the Dublin County Council (hereinafter the planning authority) or on appeal, at the relevant time, from the Minister for Local Government (now from An Bord Pleanla).
In April 1976 the developers predecessor in title applied to the planning authority for planning permission for that development on the 22.64 acres in question. The planning authority, having duly considered the application, gave effectual notice of their decision to refuse the application. Annexed to the notification of their refusal were four reasons, which may be summarised as follows:
1. The site is located in an area zoned to provide for the further development of agriculture and to preserve open space amenity.
2. Public piped sewerage services are not available and the proposed private treatment plant is not acceptable.
3. The proposed development would be premature because of the latter deficiency and because of the time it would take to remedy that deficiency.
4. The proposed development would be a traffic hazard and thereby a danger to public safety because of the unacceptable additional traffic it would add to the Belgard Road and the Naas Road dual carriageway.
It is clear from the affidavits filed in the present proceedings on behalf of the planning authority that if they had granted the permission sought they would have disregarded s.26(3) of the 1963 Act, which forbade them to grant a permission which would materially contravene the plan, unless they applied for and got the consent of the Minister in the manner prescribed. They were not prepared to seek that consent and it is easy to understand why. The lands in question were always used for agricultural purposes. They were zoned in the development plan for the further development of agriculture and to preserve open space amenity. The planning authoritys policy of having visual breaks between urban areas was stated in the plan in the following terms:
In order to create a good living environment the [planning authority] considers that unbroken ever-expanding urban development without open green areas of separation is undesirable. It is, therefore, the policy of the [planning authority] to make considerable open green breaks both between the existing City and future development areas and also between the individual development areas. To this end it is the policy of the [planning authority] to preserve the necessary open areas of land.
This declared policy of having green belts in order to prevent urban or suburban sprawl, as affirmed by the planning authority and as acquiesced in by the Minister, was plainly not intended to be cast aside by either the planning authority or by the Minister. Before a development permission which materially contravened the plan (as did the permission sought here) could be granted, the planning authority and the Minister would have had to comply with the *174 requirements of s.26(3) of the 1963 Act (as that subsection then stood). I unreservedly reject the contention put forward on behalf of the developers that the Minister, when hearing an appeal from the refusal of a permission, had power, of his own motion and in the absence of a request therefor from the planning authority, to grant the permission even though it materially contravened the plan. It is true that such a power was granted to An Bord Pleanla by s.14(8) of the 1976 Act, but it was never given, either expressly or impliedly, to the Minister. Incidentally, it is of interest to note that, although An Bord Pleanla has been given that power, there is evidence that it has, subsequent to the Ministers purported grant of outline permission, refused permission for industrial development on lands which included a major part of the lands in question here. This seems to emphasize the aberrational nature of the Ministers action, to which I shall presently refer more fully, in reversing the planning authoritys refusal and granting outline planning permission.
Apart from the objection that the proposed development would consistute an unacceptable traffic hazard, the planning authority founded their refusal of permission on the fact that the proposed development, which was intended to be drained by means of a sewage treatment plant and local authority sewage system, could not be operated because there was no public authority sewerage system, either in existence or projected, which would be able to cope with the effluent that would be generated by the proposed development. It was the opinion of the planning authority that it was not within their competence or that of the developer to make the proposed development feasible in that respect.
It is no wonder, therefore, that the planning authority refused the full planning permission asked for. Indeed, the proposed development would be such a blatant violation of the objectives of the development plan that one would not expect an appeal to be lodged against the refusal. But the developers predecessor in title lodged a notice of appeal in October 1976 to the Minister the new appellate procedure to An Bord Pleanla under the 1976 Act not having yet come into operation. To the surprise and consternation of the planning authority the Minister allowed the appeal. At least to this extent. Although the application was for full development permission, the Minister treated it as an application for outline permission. On that footing, in March 1977, he decided to give outline permission for industrial, warehouse and office development on the site, subject to the following single condition:
The developer shall pay a sum of money to the [planning authority] as a contribution towards the [planning authoritys] expenditure on the provision of a public water supply and piped sewage facilities in the area. The amount to be paid and the time and method of payment shall be agreed between the developer and the [planning authority] before the development is commenced, or, failing agreement, shall be as determined by the Minister for Local Government.
The grant of such an outline permission (assuming it to have been permissible to grant outline permission on an appeal from a refusal of an application for full development permission) was in excess of the Ministers powers. It treated the sewerage difficulty as being the only matter that stood in the way of the proposed development, whereas the essence of the matter was that the proposed *175 development offended against a crucial feature of the development plan, namely the preservation of green belts between Dublin and the new towns, such as Tallaght and Clondalkin, which were designed to grow up in an orderly and environmentally acceptable way to the west of the metropolis. By granting the outline permission, the Minister violated an essential part of the plan, and he did so by disregarding the conditions precedent to a permitted material contravention of the plan, ignoring the rights of the planning authority and of those who were entitled to get notices and to be heard before such a material contravention could take place. It is no wonder that Parliament, in its wisdom, by the 1976 Act, transferred to an independent appeal board the appellate power which had been vested by the 1963 Act in a Minister, who might be influenced in his decisions by political pressures or other extraneous or unworthy considerations.
The outline planning permission granted by the Minister in this case was clearly ultra vires and therefore a nullity. Counsel for the developer has contended, however, that even if that be so, there is now an absolute statutory bar on any attempt to question the validity of the Ministers decision in any legal proceedings. The source of this submission is s. 82(3A) of the 1963 Act which provides that:
A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of
(c) a decision of the Minister on any appeal, unless the proceedings are commenced within the period of two months commencing on the date on which the decision is given.
This limited ouster of judicial intervention was not contained in the original Act of 1963. It was interpolated by s. 42 of the 1976 Act. The 1976 Act, however, came into operation piecemeal by statutory instruments which the Minister was allowed to make by s. 46(3) of the 1976 Act; and s. 42 of the 1976 Act did not come into operation until 15 March 1977 (by SI No. 56 of 1977). The result was that the Ministers grant of outline planning permission on 10 March 1977 was made before s. 82 (3A) had come into operation. In consequence, its nullity for having been made ultra vires was not subject to the time bar introduced by s. 82 (3A). The latter subsection was clearly intended to apply only to cases where an aggrieved person had the full period of two months in which to question the Ministers decision. I deem it to be a fundamental rule of judicial interpretation that when a statutory provision purports to oust, after a specified period, the jurisdiction of the courts to question the validity of a decision which up to then would have been open to question in the courts, the purported ouster will not have effect unless exclusionary provision was in operation when the decision in question was made. The ouster of jurisdiction aimed at by s. 82(3A) was intended to remove at the end of two months the risk that the grant of permission could be questioned in the courts at any time, thus enabling duly granted development to be retarded by delaying tactics in the courts long after the grant of permission had been made. S. 82 (3A), therefore, partakes of the characteristics of a statute of limitations. Apart from the fact that the courts should be reluctant to surrender their inherent right to enter on a question of the validity of what are prima facie *176 justiciable matters, it would be a wrong and unjust method of statutory interpretation to attribute to the legislature the intention that a developer could rely on s. 82 (3A) so as to get the benefit of a demonstrably void decision when the full period of two months allowed for questioning it was not open to him not open for the simple reason that s. 82 (3A) did not become operative until after the decision had been made.
I would hold, therefore, that in the special circustances of this case the developer cannot use s. 82 (3A) to shield what was plainly a void outline planning permission from being questioned in the courts.
The present appeal is from an order of the High Court granting an absolute order of mandamus commanding the planning authority to grant full planning permission to the developers in implementation of the outline planning permission granted by the Minister. Because, for the reasons I have adduced, that decision of the Minister was not given immunity from being questioned by s. 82 (3A) of the 1963 Act; because its validity has in fact been questioned by the planning authority in these proceedings; and because it now appears that the decision was ultra vires and therefore a nullity, the grant of an order of mandamus to implement a ministerial decision which was clearly devoid of validity would not be a proper exercise of the courts jurisdiction.
It is only fair to point out that the attention of the judge in the High Court was not drawn to the fact that s. 82 (3A) did not come into operation in time to allow the planning authority or any other interested parties an opportunity of availing themselves of the full period of two months prescribed for questioning the ministerial permission. Maxwell ( On the Interpretation of Statutes , 12th edn., p. 215) puts the position correctly when he says that statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed (or, I would add, have come into operation) unless a retrospective effect is clearly intended. Had the application of that principle to the facts of this case been drawn to the judges notice, I feel the order and judgment under appeal would be different.
Finally, I should deal with the submission of counsel for the developer that, because the planning authority did not within the appropriate period deal with the application to implement the outline permission granted by the Minister, the application should be deemed to have been granted under s. 26 (4) of the 1963 Act. The short answer to this submission is that permission by default under s. 26 (4) (even if the application was made in compliance with the relevant regulations) cannot be held to have been given if it would contravene s. 26 read as a whole. Here it undoubtedly would, particularly s. 26 (3). An order of mandamus in a case such as this is discretionary, and it would be a wrongful exercise of the courts discretion to issue such an order when its effect would be to violate both the spirit and the letter of the statute.
I would allow this appeal and discharge the order of the High Court.