Brady v Donegal County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 06 November 1987
• Neutral Citation: 1988 WJSC-HC 17
• Docket Number: 1986/4549P
• Court: High Court
• Date: 06 November 1987

1988 WJSC-HC 17

THE HIGH COURT

1986/4549P

BRADY v. DONEGAL CO COUNCIL

IN THE MATTER OF THE CONSTITUTION:

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS, 1963TO 1983

IN THE MATTER OF:-

WALTER BRADY, GEORGE KNOWLES, STEWART CONNOLLY AND ANNESMYTH

PLAINTIFFS

AND

THE DONEGAL COUNTY COUNCIL AND ANNA BOYLE

DEFENDANTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(a)

RSC O.60 r1

PLANNING & DEVELOPMENT REGS SI 65/1977 ART 14

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

CONSTITUTION ART 40.3.2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(c)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S42

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S81

CAVERN SYSTEMS LTD V CLONTARF RESIDENTS ASSOC 1984 ILRM 241

CAHILL V SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

NORRIS V AG 1984 IR 36

O'BRIEN V KEOGH 1972 IR 144

O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334

MOYNIHAN V GREENSMYTH 1977 IR 55

ELECTRICITY SUPPLY BOARD (ESB) V GORMLEY 1985 IR 129

DREHER V IRISH LAND COMMISSION 1984 ILRM 94

MORGAN V PARK DEVELOPMENTS 1983 ILRM 156

INVER RESOURCES V LIMERICK CORPORATION 1987/3/802 1987 IR 159 1988 ILRM 57

Synopsis:

CONSTITUTION

Statute

Validity - Personal rights - Property right - Time limit - Rights barred on expiration - Exceptions not provided - Injustice - The plaintiff owned a bungalow and plot of ground at Dunfanaghy in the county of Donegal - A field behind the plaintiff's holding was used for grazing cattle and was bought by the second defendant; she wanted to use the field as a caravan park for ten caravans - Article 14 of the Regulations of 1977 states that a person who intends to apply to a planning authority for permission to develop land shall publish, in a newspaper circulating in the area of a proposed development, a notice specifying the land and stating that intention - A notice in Irish, stating the intention of the second defendant, appeared in the issue of the "Derry Journal" dated 1/10/85 - There was evidence that the "Derry Journal", which was published in Northern Ireland, did not circulate in the area of the plaintiff's holding on that date - The second defendant applied to the defendant planning authority for permission to develop her field as a caravan park and on 10/12/85 the defendant authority decided to grant that application - At the end of February, 1986, the plaintiff first became aware of the intentions of the second defendant - Section 81, sub-s.3(A), of the Act of 1963 (inserted by s.42 of the Act of 1976) states that no legal proceedings whatsoever shall be brought by a person to question the validity of a decision of a planning authority on an application for permission unless the proceedings are instituted "within the period of two months commencing on the date on which the decision is given" - On 8/5/86 the plaintiff instituted these proceedings and claimed a declaration that the defendant authority's decision dated 10/12/85 was invalid because the said newspaper did not circulate in the area of the plaintiff's bungalow - The second defendant pleaded that the plaintiff's claim was barred by s.81, sub-s.3(A), of the Act of 1963 and the plaintiff replied that, if that were so, the provisions of that sub-section were invalid having regard to the provisions of the Constitution - The Attorney General, a notice party, opposed the plaintiff's claim but did not contest the plaintiff's contention that his action was designed to vindicate a property right - Held that there was prima facie evidence that the advertisement of the second defendant's intentions was not published in a newspaper circulating in the area of the plaintiff's bungalow, and that the exercise of the plaintiff's right to object to the proposed development, conferred on the plaintiff pursuant to the provisions of the Act of 1963, had been prevented by the wrongful act of the second defendant - Held that the effect of s.81, sub- s.3(A), of the Act 1963 in such circumstances was to prevent the plaintiff having recourse to the courts to protect his rights although he had been deprived, by the wrongful act of the second defendant, of the opportunity to avail of the statutory period provided by the Oireachtas for the protection of those rights - Held that the provision of an appropriate exception to the statutory prohibition against legal proceedings commenced after the expiration of the said period of two months would have a minimal effect on the public interest intended to be served by the said sub-section, and that the omission of such exception was unreasonable - Held, therefore, that the court would declare that the provisions of the said sub-section were invalid having regard to the provisions of the Constitution: ~Cavern Systems Ltd. v. Clontarf Residents Association~ [1984] ILRM 24 and ~Cahill v. Sutton~ [1980] I.R. 269 considered - Local Government (Planning & Development) Regulations, 1977, article 14 - Local Government (Planning & Development) Act, 1963, ss.26, 81 - Local Government (Planning & Development) Act 1976, s.42 - (1986/4549 P - Costello J. - 6/11/87) 1986 IR 698 - [1989] ILRM 282

|Brady v. Donegal County Council|

CONSTITUTION

Personal rights

Recourse to courts - Denial - Planning decision - Limited period for objector's action - Statute bar at expiration of period - ~See~ Constitution, statute - (1986/4549 P - Costello J. - 6/11/87) 1986 IR 698

|Brady v. Donegal County Council|

LIMITATION OF ACTIONS

Planning authority

1 Judgment of Mr. Justice Costellodelivered on the 6th day of the November, 1987. Mary P. O'Donoghue Registrar

2 The question for determination on the issue I have tried is whether subsection 3A of section 82 of the Local Government (Planning and Development) Act, 1963(which puts a two-months time limit on applications to the Court to question the validity of permission decisions of planning authorities) is unconstitutional. It arose in the following circumstances.

3 Mr. Brady, the first-named Plaintiff, owns a bungalow at Kill, Dunfanaghy, in the County of Donegal which he occupies from time to time as a holiday home. Archdeacon Knowles, the second-named Plaintiff, also has a holiday home, close to Mr. Brady's. The other Plaintiffs, Mr. Connolly (who since the institution of these proceedings has died) and Miss Smyth resided permanently at Kill, not far from Mr. Brady's bungalow. The area is a rural one, served by a narrow winding country road from the main Portnablagh-Dunfanaghy road. Behind Mr. Brady's house and in front of that of Archdeacon Knowles is a field which for a number of years was used for grazing cattle. Recently it was purchased by Mrs. Boyle, the second-named Defendant. It is her plans for its development that have led to the present proceedings.

4 Unnoticed by any of the Plaintiffs Mrs. Boyle caused to be inserted in the issue of the "Derry Journal" of the 1st October 1985 (a newspaper published in Northern Ireland) a notice in the Irish language evincing an intention to apply to the Donegal County Council (the first-named Defendants herein) for permission to use her field as a caravan park for the siting of ten caravans. She applied for permission and on the 10th December, 1985 the Council decided to grant it. It is that decision that the Plaintiffs now challenge. None of them had seen the notice in the "Derry Journal" and so were unable to raise any objection to Mrs. Boyle's application. Sometime in the following January or February (the exact datecannot now be recalled) Mr. Connolly's wife overheard in a local shop in Portnablagh a conversation which indicated that a caravan park was to be built near Mr. Brady's house. Mr. Connolly told Mr. Brady and he and his co-Plaintiffs decided to inquire as to whether planning permission had been obtained for the proposed development. As a precautionary measure, Mr. Brady wrote on the 17th February, 1986 a letter of appeal to An Bord Pleanala (not then knowing whether permission had been obtained) and hereceiveda reply on the 26th February informing him that a grant of permission had been made on the "10th January, 1986" and that his appeal to the Board was out of time. (This letter was in fact somewhat inaccurate; the decision of the planning authority had been made on the 10th December, 1985; its notification to Mrs. Boyle had been dated 10th January, 1986).

5 Until receipt of this letter the Plaintiffs were unaware of the decision to grant Mrs. Boyle permission to use her field as a caravan park. Subsequently, they obtained particulars of the date it had been obtained and learnt how the application had been advertised. On 8th May, 1986 these proceedings were then instituted. In them the Plaintiffs claim a declaration that the decision of the 10th December was invalid because the "Derry Journal" was not a newspaper circulating in the Dunfanaghy area and that this breach of the Planning Regulations invalidated the permission. Their action has had a chequered and unhappy career which I need not now detail. Mrs. Boyle pleaded, inter...