Browne v Kerry County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 09 October 2009
• Neutral Citation: [2009] IEHC 552
• Date: 09 October 2009
• Court: High Court
• Docket Number: [2007 No. 713

Browne v Kerry Co Council

[2009] IEHC 552

IN THE MATTER OF SECTION 50 AND SECTION 261 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN:

PATRICK BROWNE

APPLICANT

-AND-

KERRY COUNTY COUNCIL

RESPONDENT

[2009] IEHC 552

RECORD NO. 713 JR/2007

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Quarry

Registered quarry - Conditions imposed by respondent - Conditions imposed outside of statutory time limit - Statutory interpretation - Literal approach - Calculation of time limit - Provision allowing for holiday period to be excluded - Whether time limit mandatory or directory - Whether holiday period over successive years could be excluded in calculating time limit - McCann v An Bord Pleanala [1997] 1 IR 264 applied; Dolan v O'Hara [1975] NI 215 followed; Keane v An Bord Pleanala [1997] 1 IR 184 and Monaghan v Legal Aid Board [2008] IEHC 300 (Unrep, Edards J, 06/10/2008) considered - Planning and Development Act 2000 (No 30), ss 141 and 261 - Interpretation Act 2005 (No 23) s 5 - Interpretation Act 1937 (No 38) s 11 - Conditions deemed to have been imposed within time limit, relief refused (2007/713JR - Hedigan J - 9/10/2009) [2009] IEHC 552

Browne v Kerry County Council

Facts section 261 of the Planning and Development Act 2000, as amended, provides, inter alia, that "not later than 2 years from the registration of a quarry under this section, a planning authority may, in the interests of proper planning and sustainable development, and having regard to the development plan and submissions or observations (if any) made pursuant to a notice under subsection (4) or (5):-

(i) in relation to a quarry which commenced operation before 1 October 1964, impose conditions on the operation of that quarry"

Section 251 of the Act provides, inter alia, that "(1) Where calculating any appropriate period or other time limit referred to in this Act or in any regulations made under this Act, the period between the 24th day of December and the first day of January, both days inclusive, shall be disregarded."

The applicant had been granted leave to seek, inter alia, an order of certiorari quashing the decision of the respondent whereby it imposed conditions on the operation of a quarry pursuant to section 261 of the Act of 2000. The quarry in question commenced operation prior to the 1st October, 1964. Accordingly, it was registered by the respondent on the 25th April, 2007, which, on the 26th April 2007, imposed conditions on its operation pursuant to section 261 of the Act of 2000, as amended. The applicant contended that the conditions which the respondent purported to impose on the quarry were unlawful since the decision to impose them was made outside the time limit provided for in section 261(6)(a) of the Act of 2000. The applicant further submitted that the time limit was of a mandatory nature, as opposed to being merely directory. Finally, the applicant argued that section 251 of the Act of 2000 ought not to apply to time limits of more than one year in duration because its application would result in patent absurdity.

Held by Mr. Justice Hedigan in refusing the relief sought that the default rule of statutory interpretation was that a literal approach had to be taken to the provision being examined. It was only in limited circumstances that that principle could be departed from. Keane v. An Bord Pleanla [1997] 1 IR 184 applied.

That, applying the principles of interpreting provisions creating time limits viz. that:- 1. a time limit was likely to be imperative where no power to extend time was given and where no provision is made for what is to happen if the time limit is exceeded in the Act;

2. requirements in statutes which give jurisdiction were usually imperative;

3. where the act was to be done by a third party for the benefit of a person who would be damnified by non-compliance, the requirement was more likely to be directory;

4. impossibility could excuse non-compliance even where the requirement was imperative", section 261(6)(a) of the Act of 2000 had to be construed as being mandatory in nature.

That the effect of section 251 of the Act of 2000 which was capable of extending time periods quite significantly in certain cases, whilst curious, was not patently absurd.

Accordingly, section 261(6)(a) of the 2000 Act whilst mandatory in nature and that, as such, the respondent was bound to act in compliance with it in the imposition of conditions, on the facts of the present case, the time limit was adhered to, having made the necessary extensions mandated by section 251 of the 2000 Act.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 S261(6)(A)

PLANNING & DEVELOPMENT ACT 2000 S251

PLANNING & DEVELOPMENT ACT 2000 S141(1)

KEANE & NAUGHTON v BORD PLEANALA & CMRS OF IRISH LIGHTS 1997 1 IR 184 1995/19/4816

INTERPRETATION ACT 2005 S5

MONAHAN v LEGAL AID BOARD & ORS UNREP EDWARDS 6.10.2008 2008/42/9153 2008 IEHC 300

INTERPRETATION ACT 2005 S18(H)

CONSTITUTION ART 43

DOLAN v O'HARA 1975 NI 125

MCCANN v BORD PLEANALA 1997 1 IR 264 1997 1 ILRM 314 1996/13/4086

1 Mr. Justice Hedigan, delivered on the 9th day of October, 2009

2 1. The applicant is the owner and operator of a quarry, situate at Clounmellane, Firies, Killarney, County Kerry ('the quarry').

3 2. The respondent is a local authority with responsibility for the administrative area of County Kerry. Its functions include the management of building developments in the county, in particular by means of the grant or refusal of planning permission.

4 3. The applicant seeks the following relief, by way of judicial review:-

5 (a) An order of certiorari, quashing the decision of the respondent dated the 26 ^th of April 2007 whereby the respondent imposed conditions on the operation of a quarry pursuant to section 261 of the Planning and Development Act 2000, as amended ('the 2000 Act'); and

6 (b) A declaration that the respondent determined the applicant's application outside the period prescribed by section 261(6)(a) of the 2000 Act.

I. Factual and Procedural Background

7 4. The facts of the present case are not in dispute. It is common case that the quarry, which commenced operation prior to the 1 ^st of October 1964, was registered by the respondent on the 26 ^th of April 2005. On the 26 ^th of April 2007, the respondent purported to make a decision imposing conditions on the quarry, pursuant to section 261(6)(a) of the 2000 Act.

8 5. On the 2 ^nd of February 2009, Cooke J. granted leave to the applicant to challenge the purported decision of the respondent on the basis that it had been made outside the relevant time period under section 261 of the 2000 Act.

II. The Legislative Regime

9 6. Section 261(6)(a) of the 2000 Act provides for the imposition of certain conditions on the operation of a given quarry. It provides as follows:-

"Not later than 2 years from the registration of a quarry under this section, a planning authority may, in the interests of proper planning and sustainable development, and having regard to the development plan and submissions or observations (if any) made pursuant to a notice under subsection (4) or (5):-"

(i) in relation to a quarry which commenced operation before 1 October 1964, impose conditions on the operation of that quarry, or

(ii) in relation to a quarry in respect of which planning permission was granted under Part IV of the Act of 1963 restate, modify or add to conditions imposed on the operation of that quarry,

10 and the owner and operator of the quarry concerned shall as soon as may be thereafter be notified in writing thereof."

11 7. Section 251 of the 2000 Act deals with the calculation of time periods under the Act. It states:-

12 2 "(1) Where calculating any appropriate period or other time limit referred to in this Act or in any regulations made under this Act, the period between the 24th day of December and the first day of January, both days inclusive, shall be disregarded.

13 (2) Subsection (1) shall not apply to any time period specified in Part II of this Act."

14 8. Section 141(1) of the 2000 Act provides for situations in which the last day of a time period falls on a public holiday. It states as follows:-

"Where a requirement of or under this Act requires a planning authority or the Board to give a decision within a specified period and the last day of that period is a public holiday (within the meaning of the Organisation of Working Time Act, 1997) or any other day on which the offices of the planning authority or the Board are closed, the decision shall be valid if given on the next following day on which the offices of the planning authority or Board, as the case may be, are open."

III. The Submissions of the Parties

15 9. The applicant contends that the conditions which the respondent purported to impose on the quarry are unlawful since the decision to impose them was made outside the time limit provided for in section 261(6)(a) of the 2000 Act. The applicant further submits that this time limit is of a mandatory nature, as opposed to being merely directory. Finally, the...