Ardoyne House Management Company Ltd v B rdas Atha Cliath

JurisdictionIreland
Judgment Date06 February 1998
Date06 February 1998
Docket Number[1996 No. 412 J.R.]
CourtHigh Court
Ardoyne House Management Co. Ltd. v. Bárdas Átha Cliath
Ardoyne House Management Company Limited
Applicant
and
Bárdas Átha átha Cliath and An Bord Pleanála, Respondents, and Legis Limited, Notice Party
[1996 No. 412 J.R.]

High Court

Local Government - Planning - Inadequate site notice - Service of notice requiring republication - Whether notice remains effective until complied with or quashed - Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86), arts. 17(2) and 39.

Judicial review - Certiorari - Discretion - Alternative appellate procedure commenced by applicant - Whether bar to relief.

An application for planning permission was made to the first respondent on behalf of the notice party, a developer. The applicant objected on grounds which included concerns that the site notice and newspaper advertisements were misleading. The first respondent served a notice under art. 17(2) of the Local Government (Planning and Development) Regulations, 1994, directing the notice party to publish revised notices.

The applicant decided to make no further representations to the first respondent pending compliance by the notice party with the art. 17(2) notice.

The notice party saw specific difficulties in re-advertising as required by this notice and took no steps to comply with the notice by advertising or displaying a site notice as required in the art. 17(2) notice.

The first respondent purported to grant permission for the proposed development. This decision was challenged by the applicant on the basis that it was ultra vires the planning authority to grant permission for a development when an art. 17(2) notice had not been complied with.

The first respondent and the notice party asserted that the applicant having entered an appeal to the second respondent, were confined to seeking their reliefs by this route and could not seek relief by way of certiorari.

Held by Morris P., in granting the relief sought, 1, that there was no provision in the planning code for the withdrawal of an art. 17(2) notice and it remained effective until it was either complied with or quashed by the court.

2. That, if a valid art. 17(2) notice had been served, then before a planning authority could decide to grant or refuse a planning permission, the notice must have been complied with and, in accordance with art. 39 of the Local Government (Planning and Development) Regulations, 1994, after this compliance, 14 days must have elapsed.

3. That non-compliance with particular requirements of an art. 17 (2) notice would not be cured by the fact that there was "effective compliance" in accordance with the permission regulations, of these requirements in the original site notice.

4. That where the validity from a legal point of view of a purported decision of a planning authority was to be considered, the appropriate tribunal in which the applicant should seek relief was the court, and the service of a notice of appeal to the second respondent was no bar to an application to the court.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; Tennyson v. Corporation of Dun Laoghaire[1991] 2 I.R. 527 andP. & F. Sharpe Ltd. v. Dublin City and County Manager[1989] I.R. 701 followed.

Cases mentioned in this report:-

P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701; [1989] I.L.R.M. 565.

The State (Abenglen Properties) v Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

Tennyson v. Corporation of Dun Laoghaire [1991] 2 I.R. 527

Judicial review.

The facts have been summarised in the headnote and are more fully set out in the judgment of Morris P., infra.

A statement required to ground an application for leave to apply for judicial review was filed on the 19th December, 1996. On...

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