Blessington Heritage Trust Ltd v Wicklow County Council

JurisdictionIreland
CourtHigh Court
JudgeMrs Justice McGuinness
Judgment Date01 January 1999
Neutral Citation[1998] IEHC 8
Docket Number[1997 No. 101 J.R.],No.101JR/1997
Date01 January 1999

[1998] IEHC 8

THE HIGH COURT

No.101JR/1997
BLESSINGTON HERITAGE TRUST LTD v. WICKLOW CO COUNICL & MIN FOR THE ENVIRONMENT
JUDICIAL REVIEW

BETWEEN

BLESSINGTON HERITAGE TRUST LIMITED
APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW AND THE MINISTER FOR THE ENVIRONMENT
RESPONDENTS

AND

ROADSTONE (DUBLIN) LIMITED
NOTICE PARTY

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S20

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21a

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S20(1A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(6)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(5)

CHAMBERS V BORD PLEANALA & SANDOZ 1992 1 IR 134, 1992 ILRM 296

LANCEFORT V BORD PLEANALA 1997 2 ILRM 508

MALAHIDE COMMUNITY COUNCIL LTD V FINGAL CO COUNCIL 1997 3 IR 383

MCGARRY V SLIGO CO COUNCIL 1989 ILRM 768

FLYNN & O'FLAHERTY PROPERTIES LTD V DUBLIN CORP UNREP KELLY 19.12.1996 1997/3/1001

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 - 1993 S26(4)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S43(1)(f)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(6)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(6)(C)

R V ROCHESTER CORP 1856 7 E & B 910

MUNICIPAL CORPORATION REFORM ACT 1835

R V INGALL 1876 2 QBD 199

METROPOLIS (VALUATION) ACT 1869 S42

HOWARD V BODDINGTON 1877 2 PD 203

PUBLIC WORSHIP REGULATION ACT 1874

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 2ED 361

ELM DEVELOPMENTS, STATE V BORD PLEANALA 1981 ILRM 108

AHERN V KERRY CO COUNCIL 1988 ILRM 382

FINN V BRAY URBAN DISTRICT COUNCIL 1969 IR 169

HAMILTON V HAMILTON 1982 IR 466

QUINLIVAN V GOV OF PORTLAOISE PRISON & DPP 1998 2 IR 113

MAXWELL INTERPRETATION OF STATUTES 12ED 215

Synopsis

Planning

Judicial review; certiorari; prohibition; mandamus; declaration; locus standi; review of development plan by planning authority; review to take place at least every five years; extension of review period by Minister; whether development plan could be reviewed after expiry of review period; whether more than one extension of review period possible; whether extension of review period had retrospective effect; whether notice must be given of application to Minister for extension of review period; whether applicant company had locus standi; ss. 19, 20, 21 & 21A Local Government (Planning and Development) Act, 1963

Held: Applicant company had locus standi; review period could be extended more than once; notice need not be given of application for extension of review period; development plan could not be reviewed after expiry of review period; extension of review period did not have retrospective effect; adoption of revised development plan invalid; declaration and order of certiorari granted (High Court: McGuinness J.21/01/1998) - [1999] 4 IR 571

Blessington Heritage Trust Limited v. Wicklow County Council

1

JUDGMENT of Mrs Justice McGuinness delivered the 21st day of January 1998.

2

In these Judicial Review proceedings the Applicant, which is a company limited by guarantee, seeks a number of Orders against the first named Respondent (the County Council) as follows:-

3

1. An Order of Certiorari quashing the decision of the first named Respondent to adopt a Development Plan for the Blessington area which Plan was adopted by the first named Respondent on the 9th day of September, 1996.

4

2. A declaration that the adoption of the said Plan was made outside the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963.

5

3. A declaration that the second named Respondent has no jurisdiction to extend the appropriate period provided in Section 20 of the Local Government (Planning and Development) Act, 1963in circumstances where the period as aforesaid has expired.

6

4. A declaration that a decision of the second named Respondent to extend the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963does not act retrospectively to validate ultra viresdecisions.

7

5. A declaration that the first named Respondent failed to comply with the requirements of fair procedures and the requirements of natural justice in making the said application to the second named Respondent and failed to comply with the requirements of Section 19 of the Local Government (Planning and Development) Act, 1963.

8

6. A declaration that the first named Respondent failed to comply with the requirements of the Respondent's own standing orders in the adoption of the said Development Plan.

9

7. An Order of Mandamus requiring the first named Respondent to prepare and adopt a Development Plan for the administrative area of Wicklow.

10

8. An Order prohibiting the first named Respondent from considering an application made under Section 26 of the Local Government (Planning and Development) Act, under the said Blessington Development Plan.

11

As far as number 8 above is concerned, this presumably refers to an application for planning permission for the extraction of sand and gravel which has been made by the Notice Party, Messrs Roadstone (Dublin) Limited and which is at the present being considered by the first named Respondent.

12

For convenience I shall refer to the first named Respondent as "the County Council" and the second named Respondent as "the Minister": I shall refer to the Notice Party as "Roadstone".

13

In the course of the proceedings before this Court it became clear that the main relief sought by the Applicant was the first Order listed above - an Order of Certiorari quashing the decision of the County Council on the 9th September, 1996 to adopt a Development Plan for the Blessington area (the "Blessington Plan"). A number of grounds were put forward for the claim that the decision of the County Council to adopt a Development for the Blessington area. A number of grounds were put forward for the claim that the decision of the County Council to adopt the Blessington Plan was invalid. These included the fact that the plan was adopted at a time when the appropriate period for reviewing the County Wicklow Development Plan had expired and had not been extended by the Minister, and that therefore the adoption of the Plan was ultra vires the County Council. It was also claimed that the County Council should have given public notice of its intention to apply to the Minister for an extension of the period for reviewing the Plan. A further ground Was that the Minister had no jurisdiction retrospectively to validate an ultra vires decision of the County Council or to extend the appropriate period for the review of the Development Plan on more than one occasion. The Applicant also impugns the circumstances in which the Blessington Plan was adopted by the County Council, stating that this was done in breach of the A County Council's own standing orders.

14

Both the County Council and the Minister strenuously opposed the claim that the adoption of the Blessington Plan was in any way invalid or ultra vires the County Council.

15

The Applicant's proceedings were issued on the 7th March, 1996 and the Order giving the Applicant leave to seek Judicial Review was made by Kelly J. on the 10th March. 1996. On the 16th June, 1997 Messrs Roadstone (Dublin) Limited were on their own application joined as Notice Party in the proceedings. In addition to their other stated grounds for opposing the Order sought by the Applicant (to which I shall refer later) the Notice Party strongly challenges the locus standi of the Applicant in bringing these proceedings.

THE STATUTE
16

Since a large number of the issues raised and argued before this Court turn on the interpretation of Sections 19, 20, 21 and 21a of the Local Government (Planning and Development) Act, 1963(as amended), it will be helpful at this point to refer to the relevant portions of these sections, which provide as follows:-

17

19. - (1) Every planning authority shall, within the period of three years beginning on the appointed day (or such longer period as the Minister may in any particular case allow), make a plan indicating development objectives for their area.

18

(2) A development plan shall consist of a written statement and a plan indicating the development objectives for the area in question, including objectives -

19

(a) with respect to county boroughs, boroughs, urban districts and scheduled towns -

20

(i) for the use solely or primarily (as may be indicated in the development plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise)

21

(ii) for securing the greater convenience and safety of road users and pedestrians by the provision of par king places or road improvements or otherwise;

22

(iii) for development and renewal of obsolete areas.

23

(iv) for preserving, improving and extending amenities;

24

(b) with respect to other areas -

25

(i) for development and renewal of obsolete areas,

26

(ii) for preserving, improving and extending amenities,

27

(iii) for the provision of new water supplies and sewage services and the extension of existing such supplies and services.

28

(3) Without prejudice to the foregoing subsection and subsection (5) of this section, a development plan may indicate the objectives for any of the purposes mentioned in the Third Schedule to this Act and, with respect to areas other than county boroughs, boroughs, urban districts and scheduled towns, objectives for the use solely or primarily (as may be indicated in the Development Plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise)......

29

(5) A planning authority may make either -

30

(a) One...

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