CANN v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 20 June 1996
• Neutral Citation: 1996 WJSC-HC 4086
• Docket Number: No. 257JR/1995
• Court: High Court
• Date: 20 June 1996

1996 WJSC-HC 4086

THE HIGH COURT

No. 257JR/1995

CANN v. BORD PLEANALA

BETWEEN

FRANCIS TERENCE McCANN

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

THE COUNTY COUNCIL OF SLIGO

NOTICE PARTY

Citations:

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S17(1)

INTERPRETATION ACT 1937 S11

DODDS V WALKER 1981 2 AER 609

MAX DEVELOPMENTS LTD V BORD PLEANALA 1994 2 IR 121

INTERPRETATION ACT 1937 S11(h)

MCGUINNESS V ARMSTRONG PATENTS LTD 1980 IR 289

INTERPRETATION ACT 1937 SCHED 19

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 128

ELM DEVELOPMENTS, STATE V BORD PLEANALA 1981 ILRM 108

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S17(1)(a)

VETERINARY COUNCIL V CORR 1953 IR 12

MONAGHAN URBAN DISTRICT COUNCIL V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

Synopsis:

PLANNING

Decision

Appeal - Procedure - Compliance - Failure - Appeal lodged day after expiration of statutory time limit - Mandatory statutory requirement - Appeal from planning decision made on 7th June received on 7th July - One month from and including date of decision allowed for lodging appeal - Statutory provision that appeal invalid if received after expiration of time limit - Decision of planning board that appeal invalid - Refusal to grant leave to apply for judicial review of decision - Interpretation Act, 1937 (No. 38), s. 11(h) - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26(5) - Local Government (Planning and Development) Act, 1992 (No. 14), ss. 3, 17 - (1995/257 JR - Lavan J. - 20/6/96) [1997] 1 IR 264 - [1997] 1 ILRM 314

|McCann v. An Bord Pleanala|

WORDS AND PHRASES

"Month"

Planning - Decision - Appeal - Time limit - Expiration - Calendar month - Developer's appeal against conditions attached to planning permission - Appeal to be received within one month beginning on the day of the giving of the impugned decision - Decision given on 7th June and appeal received on 7th July - Appeal out of time - Compliance with mandatory statutory provision required - (1995/257 JR - Lavan J. - 20/6/96) [1997] 1 IR 264 [1997] 1 ILRM 314

|McCann v. An Bord Pleanala|

Mr. Justice Lavan

1 This is an application for leave to apply by way of judicial review for an order of certiorari quashing the decision of An Bord Pleanála (the respondent) declining to hear an appeal by the applicant against certain conditions in a planning permission, and an order of mandamus compelling the respondent to hear and determine the said planning appeal. Under the provisions of Section 82 (3B), Local Government (Planning & Development) Act,1963(inserted by Section 19 (3) of the 1992 Act), leave to apply for judicial review will not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. The point on which the respondent's decision is being challenged is a net one: when does the time-limit for appealing a planning authority's decision to An Bord Pleanála expire? This question turns on the interpretation of the term “month”.

2 The applicant had applied for planning permission for certain development namely the retention of a new entrance and road to his reconstructed house at Barnaribbon, Co. Sligo. The planning authority made a decision to grant permission on 7th June, 1995. An appeal against certain conditions attached to this decision was received by the respondent on 7th July, 1995. The respondent subsequently returned the appeal documentation and fee to the applicant by letter dated 25th August, 1995, stating that the purported appeal must be regarded as invalid as not having been made in time. It is this decision of the respondent which the applicant now wishes to challenge. It appears from the appeal documents that the applicant's agents incorrectly stated the date of the planning decision as 8th June, 1995 and that the respondent was only disabused of this belief on examination of the documents received from the planning authority.

3 Section 26 (5), Local Government (Planning & Development) Act,1963as substituted by Section 3, 1992 Act:-

4 a "(a) Any person may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under this section.

…

5 (f) In paragraph (a) of this subsection “the appropriate period” means the period of one month beginning on the day of the giving of the decision of the planning authority."

6 Section 17 (1), Local Government (Planning & Development) Act,1992:-

7 a "(a) Subject to paragraph (b), the provisions of Section 26 (5) of the Principal Act authorising appeals to be made before the expiration of the appropriate period within the meaning of that subsection shall be construed as including a provision that an appeal received by the Board after the expiration of the appropriate period shall be invalid as not having been made in time."

8 Section 11, Interpretation Act,1937:-

9 a "(h)Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period;"

10 The applicant's case is that the respondent erred in law in its interpretation of the statutory time limits provided for the bringing of planning appeals. It is submitted on his behalf that the “corresponding date” rule applies: the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of the month that bears the same number as the day of the earlier month on which the decision was made. Reliance is placed on the House of Lords decision inDodds v. Walker [1981] 2 All E.R. 609. I was also referred to the judgment of Flood J. in Max Developments Ltd. v. An Bord Pleanála [1994] 2 I.R. 121 where he observedobiter, in the context of the making of an application for judicial review, that the relevant two month time limit ran from the 25th May, 1993 to 25th July, 1993 ie the corresponding date. Conversely, the respondent seeks to rebut these submissions by...