Browne v Kerry County Council

JurisdictionIreland
JudgeMr. Justice Tony O'Connor
Judgment Date21 March 2017
Neutral Citation[2017] IEHC 337
Docket Number[2015 No. 695 J.R.]
CourtHigh Court
Date21 March 2017

[2017] IEHC 337

THE HIGH COURT

O'Connor Tony J.

[2015 No. 695 J.R.]

BETWEEN
MAURICE BROWNE

AND

EILEEN BROWNE
APPLICANTS
AND
KERRY COUNTY COUNCIL
RESPONDENT
AND
JEROME BROWNE
NOTICE PARTY

Environment, Planning & Construction – Planning & Development Act 2000 – Discontinuation of proceedings – Relevance – Appropriate remedy

Facts: The applicants originally sought an order of certiorari to quash the decision of the respondent for granting planning permission to the notice party. The respondent agreed to the said relief sought by the applicants and granted retention permission to the notice party. Thereafter, An Bord Pleanala determined to grant the retention permission to the notice party. The respondent had now filed the present application for seeking direction from the Court in relation to the future course of the present proceedings. The applicants submitted that the merits of the substantive claim should not be decided by the Court.

Mr. Justice Tony O'Connor held that there was no benefit in continuing the present proceedings against the respondent. The Court held that the applicants had the appropriate remedy to seek the review of the impugned decision of the Board. The Court adjourned the proceedings for the parties to explore whether it was relevant to make an order setting aside the original decision of the respondent by consent and agreement on the payment of costs.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered at Cork Court House on 21st day of March, 2017
Introduction
1

Effectively, this is an application to determine that there is no point to the continuation of these Judicial Review proceedings given the earlier open concession to set aside the impugned decision of Kerry County Council with the proviso that the decision which is the subject of the application be remitted to Kerry County Council and then particularly given the decision of An Bord Pleanála in May 2016.

Context
2

I mention in order to put this in context, s. 37(1)(b) of the Planning and Development Act 2000, which provides that where an appeal is brought against a decision of a planning authority ‘ and is not withdrawn’, An Bord Pleanála shall determine the application as if it had been made to An Bord Pleanála in the first instance.

Chronology
3

The following is a short chronology which may be gleaned from the affidavits and exhibits:-

15.07.2105 His Honour Judge Tom O'Donnell in Kerry Circuit Court upheld the applicants' complaints pursuant to an application under s. 160 of the Planning and Development Act 2000, that the notice party (brother of the first named applicant) had breached a planning permission granted on 12th February, 2013, to demolish agricultural buildings, erect a new slatted unit, move a shed among other works. The Circuit Court Judge joined Kerry County Council to the proceedings due to its failure to take enforcement proceedings.

02.10

2015 The notice party applied for retention permission and forwarded a report dated 11th September, 2015, from a farm development service company (‘the September 2015 report’) to Kerry County Council.

26.11.2015 Kerry County Council decided to grant the retention planning permission (‘the November 2015 decision’).

4

On Monday, 21st December, 2015, two events occurred:-

(i) Humphreys J. on the ex parte application of counsel for the applicants granted leave on foot of the first named applicant's affidavit sworn on 10th December, 2015, (which ran to 115 paragraphs over sixteen pages), to seek an order of certiorari of the November 2015 decision along with a number of declarations including a declaration that Kerry County Council is not entitled to grant an application for retention where it has not complied with its statutory obligations; and

(ii) engineers for the applicants sent a cover letter with a report and the prescribed fee of €220 to An Bord Pleanála appealing the November 2015 decision.

5

On 6th January, 2016, the applicants issued a Notice of Motion with a return date of 9th February, 2016, which motion has been adjourned from time to time.

6

On 31st March, 2016, the solicitors to Kerry County Council wrote to the applicants' solicitors proposing to quash the November 2015 decision and remitting the matter back to Kerry County Council along with an offer to pay the applicants' costs.

7

The detailed correspondence which followed is testament to the ingenuity, tenacity and perhaps obduracy of the parties or their legal advisers whose expansive use of words in correspondence and affidavits is quite remarkable. By letter of 20th April, 2016, the applicants' solicitors openly agreed to:-

(a) an order of certiorari of November 2015 decision;

(b) a declaration that Kerry County Council has not complied with its statutory duties according to para. C (i) of the statement required to ground the application for Judicial Review; and

(c) costs.

8

The applicants' solicitors submitted in that letter that the remittal of the retention application to Kerry County Council would defeat the applicants' entitlement to correct Kerry County Council in the way it carries out its function.

9

Kerry County Council had made it clear that the error of not placing the September 2015 report and a letter from a Mr. O'Keeffe dated 2nd November, 2015, on the public file was its error and not that of the notice party. In those circumstances, Kerry County Council suggested that the notice party should not be visited with the Council's errors while Kerry County Council assured the applicants' solicitors by letter of 20th April, 2015, that an official of Kerry County Council, without previous involvement with the application, would be engaged to process the application thenceforth.

10

By reply dated 29th April, 2016, the applicants' solicitors vehemently opposed the remittal suggestion alleging that it would be ‘ unjust and would give the appearance of objective unfairness’.

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