Brian MacMahon v an Bord Pleanála and Galway County Council :

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Charleton
Judgment Date08 December 2010
Neutral Citation[2010] IEHC 431
Date08 December 2010

[2010] IEHC 431

THE HIGH COURT

[No. 1 J.R./2010]
MacMahon v Bord Pleanála
JUDICIAL REVIEW
BRIAN MACMAHON
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

GALWAY COUNTY COUNCIL, SEAN FORDE, JANE JOYCE
NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

PLANNING & DEVELOPMENT ACT 2000 S179

PLANNING & DEVELOPMENT ACT 2000 S216

LINEHAN & ORS v CORK CO COUNCIL UNREP FINLAY-GEOGHEGAN 19.2.2008 2008/35/7688 2008 IEHC 76

PLANNING & DEVELOPMENT ACT 2000 S50

TOWN & REGIONAL PLANNING ACT 1934

TOWN & REGIONAL PLANNING (AMDT) ACT 1939

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

PLANNING & DEVELOPMENT ACT 2000 S127(1)

PLANNING & DEVELOPMENT ACT 2000 S127(2)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 29(1)

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 3 FORM 3

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 29(2)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 35(4)

PLANNING & DEVELOPMENT ACT 2000 S34(8)(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 35(1)

PLANNING & DEVELOPMENT ACT 2000 S37(1)

PLANNING & DEVELOPMENT ACT 2000 S37(6)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 29

PLANNING & DEVELOPMENT ACT 2000 S10

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Grant - Notices - Validity - Appeal - Whether respondent had jurisdiction to inquire into validity of steps taken in planning application before local authority - Discretionary nature of relief - Planning and Development (Strategic Infrastructure) Act 2000 (No 30), ss 50, 127 - O'Keeffe v An Bord Pleanála [1993] 1 IR 39 considered - Relief refused (2010/1JR - Charleton J - 8/12/2010) [2010] IEHC 431

MacMahon v An Bord Pleanála

Facts The case concerned the jurisdiction of An Bord Pleanala to accept as valid, a third-party appeal. It was common case that the third-party in question had made a submission to Galway County Council regarding a planning application. The submission was formally acknowledged by Galway County Council despite being late. Planning permission was granted and the third-party appealed to An Bord Pleanála. The acknowledgment issued by Galway County Council to the third-party was required as part of the appeal documentation under the relevant statutory regulations for the appeal to be valid. The Board took the acknowledgement at face value and proceeded to determine the appeal, ultimately overturning the decision of the planning authority and refusing permission. The applicant took judicial review proceedings against the Board claiming that that the refusal of planning permission was invalid as the appeal was not valid. It was argued that the Board should have decided if the submission to Galway County Council was in time or not. On behalf of the Board it was contended that it was not entitled to inquire into the validity of the acknowledgement and that the judicial review itself was out of time.

Held by Charleton J in dismissing the proceedings. The Board was a creature of statute, its obligation in considering an appeal was to check the validity of that appeal only against the conditions set out in the Planning and Development Act, 2000 and not by exploring as to what may have validly, or invalidly, transpired between a developer and a planning authority or an objector and the planning authority. The power argued on behalf of the applicant that the Board should exercise, to enquire into the validity of statutory notices, was of a quasi-judicial kind and was singularly absent from the statutory scheme for planning appeals. In the context of the refusal of previous applications by the planning authority, and the clear reasons given by the Board for refusal, the initial grant of permission by Galway County Council for the development was very difficult to understand.

Reporter: R.F.

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JUDGMENT of Mr. Justice Charleton delivered the 8th day of December 2010

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1. In this planning judicial review the issues of leave to commence proceedings and the substantive merit of the application are merged by consent of the parties. This judgment addresses the jurisdiction of An Bord Pleanála ("the Board") to enquire on an appeal of the grant of planning permission into the validity of steps taken in a planning application before a local authority.

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2. An application was made in 2008 to Galway County Council, the first notice party, for a 31 house development outside Kinvara town. Sean Forde and Jane Joyce, the second and third notice parties, objected to the development and their submission was formally acknowledged by Galway County Council. The submission, however, was late. Planning permission was granted. They appealed to the Board and lodged, as part of the appeal papers, the acknowledgment of Galway County Council, as required under the relevant statutory regulations. The Board took the acknowledgement at face value. There was no enquiry into whether the submission of Sean Forde and Jane Joyce was late. The Board allowed the appeal. It is claimed that this refusal of planning permission is invalid because the appeal was not valid due to the submission to Galway County Council being out of time. It is argued that the Board should have decided if the submission to Galway County Council was in time or not. The Board argues that it is not entitled to make such an enquiry. If the Board is entitled to make such an enquiry then, it is argued on behalf of the applicant, the proposed developer, an invalid appeal has been taken and the decision of the Board to refuse planning permission is accordingly invalid. If the appeal is found to be invalid, it is argued that the Court must declare the appeal unlawful and, in effect, reinstate the decision of Galway County Council granting the permission. This would establish a substantial housing estate outside Kinvara town on a blind corner on a main road to Ballyvaughan and the Burren area, within a 100 km per hour speed zone, and extend the effective boundaries of the town in a manner that the Board has declared in a reasoned decision is contrary to the proper planning and sustainable development of this area.

Jurisdiction
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3. It is argued by the Board that this judicial review is out of time. The matter hinges on the correct interpretation of s. 50(2) of the Planning and Development Act 2000 ("the Act of 2000" or "the Act") as substituted by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006. This provides:-

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2 "50(2) A person shall not question the validity of any decision made or other act done by -

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a (a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

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b (b) the Board in the performance or purported performance of a function transferred under Part XIV, or

8

c (c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of land,

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otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986) (the 'Order')."

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4. Strict time limits, a feature of the planning code, are imposed by s.50(6) as follows:-

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2 "(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2) (a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate."

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5. Subsection 8 empowers the High Court to grant an extension of time for good and sufficient reason and where the reason for the failure to make the application for leave within the period of eight weeks was outside the control of the applicant for the extension. No reasons have been advanced for extending the time for this application. Any such reasons would also have had to encompass any argument that might have been made by Sean Forde and Jane Joyce, the second and third notice parties. I will return to this point as it is important.

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6. The Act of 2000 as first promulgated, and prior to its amendment as aforesaid, prohibited the questioning outside the relevant time limits of any application for planning permission, which included an application on appeal to the Board, or any procedure by a local authority in respect of its own development under s. 179 or any confirmation of a compulsory purchase order under section 216. These, basically, are all planning permission decisions, as opposed to administrative steps that lead to such decisions. The amendment introduced by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006, in force since 17 th October 2006, extends the remit of judicial review to "any decision made or any other act done by", and in the following subsection "a decision or other act" of, the planning authority or the Board on appeal. Previously, it was clear that a final decision had to be reached before a judicial review could be commenced. Finlay Geoghegan J. in Linehan v. Cork County Council [2008] IEHC 76, (Unreported, High Court, 19 th February, 2008) offered a view, in respect of the amendment to the Act as it now stands, that it might no longer be safe for an applicant to await a final planning decision before commencing judicial review proceedings. She queried as to whether decisions of a procedural kind during the course of an application might have to be challenged as they occur.

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7. The view as expressed by Finlay...

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