Calor Teo. v Sligo County Council

• Jurisdiction: Ireland
• Judgment Date: 26 July 1991
• Date: 26 July 1991
• Docket Number: [1989 No. 15684P]
• Court: High Court

High Court

[1989 No. 15684P]

Calor Teo. v. Sligo County Council

Calor Teoranta

Plaintiff

and

The Council of the County of Sligo, Defendant

Cases mentioned in this report:—

Keleghan and Ors. v. Corby and Dublin Corporation (1976) 111 I.L.T.R. 144.

P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701; [1989] I.L.R.M. 565.

Readymix (Éire éire) Ltd. v. Dublin County Council (Unreported, Supreme Court, 30th July, 1974).

Planning - Planning permission - Grant - Grant by default - Ingredients of application - Omission - Contents of application actually submitted - Actual or implied knowledge of planning officer - Whether applicant bound by omission notwithstanding officer's knowledge - Development Plan - Liquid petroleum gas bulk storage unit - Safety considerations - Material contravention - Whether default permission grant constituting material contravention possible - Newspaper notices - Required form - Contents - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), art. 15 - European Communities (Major Accident Hazards of Certain Industrial Activities) Regulations, 1986 (S.I. No. 292) - Local Government (Planning and Development) Act, 1963 (No. 28), s. 27, sub-s. 3 - Fire Services Act, 1981 (No. 30) - Local Government (Planning and Development) Act, 1982 (No. 21), s. 10, sub-s. 2.

Plenary Summons

The facts are summarised in the headnote and fully set out in the judgment of Barron J., post.

On the 21st December, 1989, the plaintiff issued a plenary summons in the High Court seeking:—

• (a) a declaration that the defendant as the planning authority be regarded as having given a decision to grant planning permission to the plaintiff at the expiration of two months from the 9th May, 1989, or alternatively the 30th June, 1989, for development of land for a bulk LPG depot with secured office and fence at Scarden More, Strandhill Road, Sligo;

• (b) if necessary, a declaration that the defendant did not give notice to the plaintiff as applicant of its decision within the appropriate period;

• (c) a declaration that the defendant's decision of the 10th November, 1989, refusing planning permission was null and void and of no effect;

• (d) an order directing the defendant to make all necessary amendments to the planning register consequent upon the granting of the declarations above;

• (e) further and other relief;

• (f) damages.

Following discovery, the action was heard on oral evidence before the High Court (Barron J.) on the 3rd and 7th May, 1991.

Article 15 of the Local Government (Planning and Development) Regulations, 1977, provides:—

"A notice published in a newspaper in pursuance of article 14 shall contain, as a heading, the name of the city, town or county in which the land or structure is situate and shall state -

• (a) the name of the applicant,

• (b) the location of the land or the address of the structure to which the application relates (as may be appropriate),

• (c) the nature and extent of the development, or

• (d) where the application relates to the retention of a structure, the nature of the proposed use of the structure and the period of the proposed retention, or

• (e) where the application relates to the continuance of any use, the nature of such use."

Section 27, sub-s. 3 of the Local Government (Planning and Development) Act, 1963, provides:—

"(a) Where-

• (i) an application is made to a planning authority in accordance with permission regulations for permission under this section,

• (ii) any requirements relating to the application of or made under such regulations are complied with, and

• (iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,

• a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.

  • (b) In paragraph (a) of this subsection 'the appropriate period' means-

    • (i) in case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the planning authority of the application - within the period of two months beginning on the day on which the notice or notices has or have been complied with,

    • (ii) in any other case, within the period of two months beginning on the day of receipt by the planning authority of the application."

The plaintiff applied on the 12th May, 1989, to the defendant for planning permission for a proposed bulk liquified petroleum gas depot in County Sligo. An earlier application for similar permission in Sligo Town had been refused on the grounds of the dangerous nature of the development. The fire officer of Sligo Corporation was also that of the defendant and had been shown the proposed new site to eliminate any obvious objection. On the 30th June, 1989, the...