Arthur v Kerry County Council

JurisdictionIreland
JudgeMrs Justice McGuinness
Judgment Date09 February 2000
Neutral Citation[2000] IEHC 164
CourtHigh Court
Docket Number[1999 No. 277 J.R.]
Date09 February 2000

[2000] IEHC 164

THE HIGH COURT

McGuinness

No. 277 JR/1999
ARTHUR v. KERRY CO COUNCIL
Judicial Review

BETWEEN

JOSEPH ARTHUR
APPLICANT

AND

THE COUNCIL OF THE COUNTY OF KERRY
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S13

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 PART II

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 PART III

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 SI 25/1990

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART VI

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S13(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S13(5)

DUBLIN CORP V SMITHWICK 1976–1977 ILRM 280

HOBURN HOMES LTD & GORTALOUGH HOLDING LTD V BORD PLEANALA 1993 ILRM 368

GRANGE DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1986 IR 246

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S14(3)

KEANE V BORD PLEANALA 1998 2 ILRM 241

FRESCATI V WALKER 1975 IR 177

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

HALSBURYS LAWS OF ENGLAND 4ED V4

Synopsis

Administrative Law

Administrative; judicial review; planning; applicant applied for planning permission to develop his lands; respondent granted permission; on appeal permission was refused by An Bord Pleanála; applicant served compensation claim on respondent pursuant to s.11, Local Government (Planning and Development) Act, 1990, in respect of the diminution in value of his lands following the decision of An Bord Pleanála; respondent served counter notice on applicant pursuant to s.13 of the 1990 Act; applicant applied to respondent for planning permission in accordance with the counter notice; respondent granted permission; on appeal permission was again refused by An Bord Pleanála; applicant served another compensation claim on respondent under s.11 of the 1990 Act; respondent served further counter notice on applicant under s.13 of 1990 Act; whether terms of s.13 of the 1990 Act should be interpreted literally; whether second counter notice of respondent was served outside the statutory time period; ss.13(1) and 13(5), Local Government (Planning and Development) Act, 1990.

Held: s.13(1) and (5) of the 1990 Act are to be interpreted strictly; second counter notice of the respondent is void; relief sought granted except for order of mandamus.

Arthur v. Kerry County Council - High Court: McGuinness J. - 09/02/2000 - [2000] 3 IR 407 - [2000] 2 ILRM 414

The plaintiff had applied for planning permission in respect of an intended development. Permission had been granted by the respondent on two separate occasions but on each occasion the permission had been subsequently overturned on appeal by An Bord Pleanála. The plaintiff had also sought compensation from the respondent pursuant to section 11 of the Local Government (Planning and Development) Act, 1990. The respondent had on both occasions served a section 13 notice on the plaintiff thereby preventing the plaintiff from obtaining compensation whilst at the same time asserting that the development should receive permission. The second section 13 notice contained a condition which seemed designed to meet the objections of An Bord Pleanála. The plaintiff brought judicial review proceedings seeking on order of certiorari in respect of the second section 13 notice and also an order of mandamus seeking to have the claim for compensation thereby dealt with. McGuinness J granted the order of certiorari but held that as the respondent would thereby proceed to deal with the issue of compensation that an order of mandamus was not necessary.

1

JUDGMENT of Mrs Justice McGuinness delivered the 9th day of February, 2000.

2

This case concerns the interpretation of Section 13 and other relevant sections of the Local Government (Planning and Development) Act, 1990. In his Judicial Review proceedings the Applicant seeks the following reliefs

3

(I) Certiorari by way of an application for Judicial Review in respect of the Respondent's Notice dated the 21st day of May, 1999, under Section 13 of the Local Government (Planning and Development) Act, 1990whereby the Respondent purported to notify the Applicant that notwithstanding the decision of An Bord Pleanála to refuse permission for development of all that and those the lands the subject of planning application register ref. no. 846/ 1995 PL 08.100353 situate at Reenagappul, Kenmare in the County of Kerry, the lands in question were capable of other development for which permission under Part IV of the Local Government (Planning and Development) Act. 1963as amended ought to be granted and specifying the nature of such other development.

4

(II) A declaration by way of an application for Judicial Review that the said Notice dated the 21st day of May, 1999 served by the Respondent upon the Applicant under Section 13 of the Local Government (Planning and Development) Act, 1990is ultra vires, void and of no effect.

5

(III) A declaration by way of an application for Judicial Review that the earlier Notice, dated the 22nd day of October, 1997 served by the Respondent upon the Applicant under Section 13 of the Local Government (Planning and Development) Act, 1990is and was annulled and is no longer in force by reason of the decision of An Bord Pleanála dated the 24th day of February, 1999.

6

(IV) A declaration by way of an application for Judicial Review that the compensation claim which was made by the Applicant under Section 11 of the Local Government (Planning and Development) Act, 1990for such compensation as is mentioned in the said section in respect of the decision of An Bord Pleanála of the 3rd day of April, 1997 refusing planning permission sought for the Respondent's lands at Reenagappul, Kenmare, Co. Kerry is in force and falls to be considered by the Respondent.

7

(V) Mandamus by way of an application for Judicial Review directing the Respondent to consider and determine in accordance with law [and in particular in accordance with parts (II) and (III) of the Local Government (Planning and Development) Act. 1990and the Local Government (Planning and Development) Regulations, 1990], the claim for compensation made by the Applicant made under Section 11 of the said Act of 1990 in respect of a decision of An Bord Pleanála of the 3rd day of April, 1997 refusing planning permission sought for the applicant lands at Reenagappul, Kenmare, Co. Kerry.

Factual Background
8

No issue arises between the parties as to the factual background, which may be summarised as follows. In 1996 the Applicant applied for outline planning permission to develop his lands at Reenagappul, Kenmare, Co. Kerry by the construction of ten dwelling houses and other ancillary works. On 16th September, 1996 the Respondent County Council by order decided to grant outline planning permission for the Applicant's development. An Taisce appealed to An Bord Pleanála against this grant of outline planning permission and on 3rd April, 1997 An Bord Pleanála refused outline planning permission for the said development. On 24th July, 1997 the Applicant served on the Respondent a claim for compensation pursuant to Section 11 of the Local Government (Planning and Development) Act, 1990in respect of the diminution in value of his lands which resulted from the decision of An Bord Pleanála.

9

On 22nd October, 1997 the Respondent served on the Applicant a counter Notice preventing compensation pursuant to Section 13 of the Local Government (Planning and Development) Act, 1990, this Notice indicating inter alia that the said lands were in the opinion of the Respondent capable of development comprising a maximum of eight dwelling as provided in the Notice. The Applicant then applied for planning permission in accordance with the Notice which had been served on him. On 30th June, 1998 the Respondent by order granted outline planning permission for seven dwelling houses together with ancillary works on the Applicant's lands. Once again An Taisce appealed against this planning permission and on 24th February, 1999 An Bord Pleanála refused outline planning permission in respect of the development of seven dwelling houses. The reason given by An Bord Pleanála for its refusal of outline planning permission is set out in the schedule to its order of 24th February, 1999 as follows

" The proposed development is located in a prominent and visually sensitive location adjacent to areas of special amenity and at a considerable distance from the existing built up area. It is considered that the development of the site of the proposed development, prior to the development of the lands closer to the built up area and in the absence of adequate information regarding how these lands can be developed, would be premature and would constitute piecemeal development. The proposed development would, therefore, be contrary to the proper planning and development of the area."

10

On 9th April, 1999 the Applicant wrote to the Respondent asking the Respondent to move immediately to the assessment of compensation on account of the refusal of the planning permission by An Bord Pleanála. On 21st May, 1999 the Respondent served on the Applicant a further Notice which was stated to be pursuant to Section 13 of the Local Government (Planning and Development) Act, 1990. This Notice asserted that the Applicant's said lands were in the opinion of the Respondent capable of development by a development comprising a maximum number of eight dwelling houses. The content of this new Notice was virtually the same as that of the previous Notice except that there was an additional paragraph stating as follows

" An agreed schedule or time scale for the development of lands through which the access road serving this site traverses i.e. the lands between the built area of the town and the centre boundary of the site to be...

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