Abbeydrive Developments Ltd v Kildare County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] IEHC 480 |
| Docket Number | [No. 331 J.R./2003] |
| Court | High Court |
| Date | 29 November 2005 |
[2005] IEHC 480
THE HIGH COURT
AND
PLANNING & DEVELOPMENT ACT 2000 S34(8)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1990 S11
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1990 S13(1)
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 PART IV
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33
DEPT OF ENVIRONMENT & ORS STRATEGIC PLANNING GUIDELINES FOR THE GREATER DUBLIN AREA 1999
DEPT OF ENVIRONMENT NATIONAL SPATIAL STRATEGY FOR IRELAND 2002-2020
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 23(1)(a)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 23(1)(i)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 23(1)(h)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 17(1)(b)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19
MOLLOY v DUBLIN CO COUNCIL 1990 1 IR 90
MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64
MCNAMARA v AN BORD PLEANALA 1996 2 ILRM 339
PLANNING & DEVELOPMENT ACT 2000 S34(6)(a)
MCGOVERN v DUBLIN CORPORATION 1999 2 ILRM 314
DUBLIN CORPORATION DUBLIN CITY DEVELOPMENT PLAN 1991
CALOR TEORANTA v SLIGO CO COUNCIL 1991 2 IR 267
PLANNING & DEVELOPMENT ACT 2000 S34(8)(a)
P & F SHARP LTD, STATE v DUBLIN CO COUNCIL 1989 IR 701, 1989 ILRM 565
WILKINSON v DUBLIN CO COUNCIL 1991 ILRM 605
JOSEPH BURKE & DH BURKE LTD v WESTMEATH CO COUNCIL UNREP O'FLAHERTY 18.6.1998 1998/12/4057
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)
PLANNING AND ENVIRONMENTAL LAW
Permission
Judicial review - Declaration regarding grant of default planning permission - Application - Notice requiring further information served outside statutory eight week period - Whether notice invalid - Whether substantial compliance with regulations to enable proper assessment of application - Technical breaches - Whether material compliance with Development Plan - Onus of proof - Whether default permission can be granted where application open to consideration - Reluctance to find default permission - Strict interpretation of right to default permission - Consequences for objectors - Molloy v Dublin County Council [1990] 1 IR 90, Monaghan UDC v Alf-a-Bet Promotions Ltd [1980] ILRM 64, McNamara v An Bord Pleanála (No 2) [1996] 2 ILRM 339, McGovern v Dublin Corporation [1999] 2 ILRM 314, Calor Teo v Sligo County Council [1991] 2 IR 267, P&F Sharpe Ltd v Dublin City and County Manager [1989] IR 701, Williamson v Dublin County Council [1991] ILRM 605, Joseph Burke and DH Burke Ltd v Westmeath County Council (Unrep, SC, 18/6/1998) and Crodaun Homes v Kildare County Council [1983] ILRM 1 considered - Planning and Development Act 2000 (No 3), s 34 - Planning and Development Regulations 2001 (SI 600/2001), art 33 - Relief refused (2003/331JR - Murphy J - 29/11/2005) [2005] IEHC 480
Abbeydrive Developments Ltd v Kerry County Council
The judicial review application before the court concerns the default permission whereby it is submitted that the planning authority had neither requested further information nor made a decision within the eight weeks required under the provisions of s. 34(8) of the Planning and Development Act,2000.
That section provides:
a "(8)(a) Subject to paragraphs (b), (c), (d), and (e), where -
(i) an application is made to a planning authority in accordance with the permissible 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 a period of eight weeks beginning on the date of receipt by the planning authority of the application.
(b) Where a planning authority, within eight weeks of the receipt of a planning application serves notice in accordance with 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 four weeks of the notice being complied with, provided that the total period is not less than eight weeks.
(d) Where a notice referred to in sub-section (6) (where the development concerned would contravene materially the development plan) is published in relation to the application, the authority shall make its decision within the period of eight weeks beginning on the day on which the notice is first published.
(f) Where a planning authority fails to make a decision within the period specified … a decision by the planning authority to grant permission shall be regarded as having been given on the last day of that period."
The proposed development comprises a seven-year planning permission for a phased development of twenty units per annum at Ballymore Eustace West / Broadleas Commons comprising site development works, road site access, outfall foul and surface water drain and services and the erection of 10 No. two-storey, three-bed semi-detached houses, 55 No. bungalows, 72 No. dormer bungalows, two-storey community facilities comprising crèche, neighbourhood shops, medical centre and 3 No. two-bed apartments over.
On 3rd December, 2002 the planning application was received by the respondent as acknowledged on 12th December. On 6th February, 2003 the respondent served a notice requiring further information outside the statutory eight-week period. On 5th February, 2003 the applicant claimed that a decision by default was deemed to have been made and seeks a declaration to that effect.
2 2.1 The applicant sought declarations that the decision to grant planning permission in relation its application reference No. 02/2308, received by the respondent County Council on 3rd December, 2002 was to be regarded as having been given on 5th February, 2003 being a period of eight weeks beginning on the date of receipt of the application but disregarding the period between 24th December and 1st January, both days inclusive, and that the notice requesting further information dated 6th February, 2003 was invalid as not being served in accordance with Article 33(1) of the Planning and Development Regulations, 2001.
The applicant also sought, if necessary, an order ofmandamus directing the County Council to grant the application.
The applicant formally called upon the County Council to issue a grant of permission on 6th March and 10th March, 2003. The delay in making a decision has had the consequence of the applicant being unable to carry out the development and having suffered financial loss as a consequence.
2 2.2 The grounding affidavit of Mr. Gavin Lawlor, B.Sc., M.Sc. in Regional and Urban Planning and an associate of Tom Phillips Planning Consultants, filed 15th May, 2003 referred to the planning history wherein the County Council had made two decisions to grant permission. The first, a decision dated 8th January, 1999 (ref. 98/1191) granted permission for the construction of 416 No. housing units and certain associated development, subject to 44 conditions. By further decision dated 6th November, 2000, (ref. 00/419), the respondent County Council granted permission for a proposed development comprising 187 No. housing units on the land subject to 77 conditions. The second condition attached to the said decision required the applicant/developer to complete the proposed extension and upgrading of the Ballymore Eustace sewage treatment system permitted under planning reference No. 98/1333, in order to ensure adequate service existed for the proposed development before first occupation of any of the proposed dwellings. The fourth condition attached to that decision required the applicant/developer to omit 27 No. dwellings from the proposed residential scheme.
On appeal An Bord Pleanála refused permission for the said proposed development by decision dated 22nd May, 2001 (ref. PL09.122432).
A claim for compensation was made by the applicant pursuant to s. 11 of the Local Government (Planning and Development) Act,1990 in respect of the said refusal. On 13th December, 2001, the respondent purported to serve a notice pursuant to s. 13(1) of the Act of 1990, notifying the claimant that, notwithstanding the refusal by An Bord Pleanála to grant permission, the planning authority was of the opinion that having regard to all the circumstances of the case the said lands were capable of other development for which permission under Part IV of the Local Government (Planning and Development) Act, 1963, as amended and extended, ought to be granted.
The validity of the said notice is a matter of dispute between the parties.
Mr. Lawlor deposes to the date of the application and the latest date for the determination of the application being 5th February, 2003.
Mr. Lawlor further says that the planning application was made in accordance with the requirements of the relevant permission regulations. He says that the proposed development did not constitute a material contravention of the development plan and was supported by the previous decisions of the respondent.
He says that the notice requiring further information dated 6th February, 2003 was not in accordance with Article 33 of the Regulations of 2001 which required it to be made within eight weeks of the receipt of the application.
2 2.3 Mr. Gerard Deane, the Managing Director of the applicant company, said that the applicant was a property developer and had made a number of applications in relation to the lands which had been purchased with other lands in or about 1998 and comprised in total...
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