Abbeydrive Developments Ltd v Kildare County Council

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Fennelly
Judgment Date22 July 2009
Neutral Citation[2009] IESC 56
Date22 July 2009

[2009] IESC 56

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Record No. 091/2008
Abbeydrive Developments Ltd v Kildare Co Council
Between/
ABBEYDRIVE DEVELOPMENTS LIMITED
Applicant/Appellant
-and-
KILDARE COUNTY COUNCIL
Respondent

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S34(8)

MCOVERN v LORD MAYOR ALDERMEN & BURGESSES OF THE CITY OF DUBLIN 1999 2 ILRM 314

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

MONAGHAN U.D.C v ALF-A- BET PROMOTIONS LTD 1980 ILRM 64

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S15

PLANNING & DEVELOPMENT ACT 2000 S34(2)(A)

P & F SHARPE LTD v DUBLIN CITY & COUNTY MANAGER 1989 IR 701

STATE (PINE VALLEY DEV) LTD v DUBLIN CO COUNCIL 1984 IR 407

MAYE v SLIGO CORP UNREP CLARKE 27.4.2007 2007/39/8174 2007 IEHC 146

PLANNING AND ENVIRONMENTAL LAW

Permission

Default permission - Circumstances under which default permission may be granted - Development plan - Whether development in material contravention of development plan - Whether development open for consideration - Whether default permission applied - Whether limitations on entitlement to default permission - Exercise of judicial discretion - McGovern v Lord Mayor of Dublin [1999] 2 ILRM 314, Monaghan UDC v Alf-A-Bet Promotions Ltd [1980] ILRM 64, P & F Sharpe Ltd v Dublin City Manager [1989] IR 701, State (Pine Valley Developments) Ltd v Dublin County Council [1984] IR 407 considered; Maye v Sligo Corporation [2007] IEHC 146 (Unrep Clarke J, 7/4/2007) approved - Local Government (Planning and Development) Act 1963 (No 28), s 26 - Planning and Development Act 2000 (No 30), ss 15 & 34 - Planning and Development Regulations 2001 (SI 600/2001) - Relief granted (2008/91 - SC - 22/7/2009) [2009] IESC 56

Abbeydrive Developments Ltd v Kildare County Council

Facts the respondent had failed to make a decision in relation to the applicant's application for planning permission within the eight week period mandated by section 34 of the Planning and Development Act 2000. It claimed to have a right to a planning permission by default by virtue of the provisions of section 34(8) of the Act of 2000 which provides, inter alia, that "where a planning authority fails to make a decision within the [eight week] 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 High Court, in an application to it by the applicant for a declaration that it was entitled to such a default permission, held that a distinction had to be made between (a) an application for a development which would contravene materially the development plan where there could be no default permission; (b) an application which could be considered by the authority and (c) an application which was within the development plan where default permission applied. It then decided that the applicant's application fell into the middle category and could not be granted by default as it was not within the development plan. The respondent contended that there were certain aspects of the applicant's application for permission which failed to comply with the Planning and Development Regulations 2001 and rendered it impossible to grant any default permission.

Held by the Supreme Court (Fennelly J) in granting a declaration that the applicant was entitled to planning permission by default that section 34(8) of the Act of 2000 constituted an exception to the normal procedure leading to the grant of planning permission, which led to several anomalies which had been previously highlighted by the Courts but that the Oireachtas had made a clear policy decision to retain the provision despite those judicial remarks and the courts could not, therefore, impose any limitation on the effect of section 34(8). It was fundamental to the notion of a default permission pursuant to section 34(8) that any ensuing permission would not materially contravene the relevant development plan. However, as the respondent had the discretion and, consequently, the power to decide to grant or refuse permission for the development, the court could not extend the limitations on an entitlement to a default permission beyond the circumstances of a material non-contravention of the development plan.

P & F Sharpe Ltd v. Dublin City and County Manager [1989] IR 701 applied. McGovern v City of Dublin [1999] 2 ILRM 314 overruled. Maye v Sligo Corporation [2007] IEHC 146 (Unreported, High Court, Clarke J, 27th April, 2007) approved.

Reporter: P.C.

1

JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2009 .

2

Judgment delivered by Fennelly J.

3

1. The appellant applied for planning permission to build houses on a site in Ballymore Eustace, County Kildare in 2002. The respondent, the planning authority for Co Kildare, made no decision within the period of eight weeks permitted by section 34 of the Planning and Development Act, 2000. The appellant claims to have acquired the right to a planning permission by default by virtue of the provisions of sub-section 8 of that section.

4

2. The High Court (Murphy J) in a judgment of 29 th November 2005 rejected the claim. He held that the application fell into a category of development which was "open to consideration." In his view, it was a permission which, according to the terms of the Development Plan, would not normally be granted, though the planning authority had power, in the exercise of its discretion, to grant it. For that reason he held that a default permission could not arise. The central point in the appeal is whether that decision was correct in law.

5

3. The appellant is a company engaged in the development of residential property. On 2 nd December 2002, it applied to the respondent for planning permission for a substantial residential development at Ballymore Eustace. It had made earlier unsuccessful applications in respect of the same site. The application was acknowledged by the planning authority as having been duly received on 3 rd December 2002.

6

4. The eight week period permitted for the making of a decision, unless a request was made for further information, expired on 5 th February 2003. The respondent on 6 th February 2003 served a notice requiring further information, i.e., one day outside the permitted period.

7

5. The High Court decision and the dispute between the parties on the appeal turn on the fact that the proposed development, though almost entirely residential, includes a very small two-storey community facility comprising a crèche, neighbourhood shops, and a medical centre (with two apartments on the second floor). This feature would represent approximately 0.2% of the total floor area of the proposed development. The relevant zoning in the Kildare County Development Plan 1999 is R2 on part of the site and R3 on another part of the site. Both types of zoning are described as "solely residential." R2 is a zoning for low density residential development and R3 is to provide for the development of a rural community.

8

6. The significance of the inclusion of the community services is explained in an affidavit sworn by Mr. Pat Gallagher, the Senior Planner with the planning authority. Mr Gallagher drew attention to the part of the Development Plan dealing with the application of zoning objectives for the areas of Naas and Kilcock, there being no corresponding zoning matrix applicable to Ballymore Eustace. While Naas and Kilcock are not, of course, the area the subject of the development, Mr Gallagher argued that inferences can be drawn from the zoning policy for Naas and Kilcock. He referred to a table which draws a distinction between developments respectively described as "normally permitted," "not normally permitted but open for consideration" and "not permitted." Mr Gallagher proceeded to put forward the following contention, which is central to the appeal and which was accepted by the learned High Court judge:

"The said matrix table indicates that the only development that is "normally permissible" on such a zoning is residential development and other development such as a Medical/Consultant, Health Centre/Clinic, Retail Outlet and Playschool/Crèche is "not permitted". I say and believe that the analysis of the policy in paragraph 3.5.3, while not directly applicable to the subject lands, gives a strong indication that the policy in the Kildare County Development Plan 1999 is that the only development which is "normally permissible" on lands zoned with a solely residential objective is low-density housing. In addition, I say and believe that the two-storey community facilities building comprising a crèche, neighbourhood shop and a medical centre proposed by the Applicant, is not development that would fall within the category of development that is "normally permissible" with reference to the zoning of the subject site. However, given that the Kildare County Development Plan 1999 acknowledges the need of services and facilities such as to facilitate the balanced development of communities, I say and believe that the proposed two-storey community facilities building is development that has sufficient merit to allow its consideration in the context of the overall proper planning and development of the Ballymore Eustace Area."

9

7. Solicitors for the appellant wrote to the planning authority on the 6 th and 10 th of March 2003 contending that a planning permission should be regarded as having been given at the end of the eight-week period. Having failed to persuade the respondent to that effect, the appellant, in May 2003, served a notice of motion seeking leave to apply for judicial review principally...

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