Child v Wicklow County Council

• Jurisdiction: Ireland
• Judge: MR JUSTICE DECLAN COSTELLO,
• Judgment Date: 20 January 1995
• Neutral Citation: 1995 WJSC-HC 332
• Docket Number: [1993 No. 1278P]
• Court: High Court
• Date: 20 January 1995

1995 WJSC-HC 332

THE HIGH COURT

No.1278P/1993

No.61 MCA/1990

CHILD v. WICKLOW CO COUNCIL

BETWEEN

ELIZABETH CHILD AND ANTHONY CHARLES CHILD

Plaintiffs

AND

THE COUNTY COUNCIL OF THE COUNTY OF WICKOW AND WICKLOW COUNTYMANAGER

Defendants

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNINGAND DEVELOPMENT) ACT 1976

BETWEEN

WICKLOW COUNTY COUNCIL

Applicant

AND

ELIZABETH CHILD AND ANTHONY CHARLES CHILD

Respondents

Citations:

FLANAGAN V GALWAY CITY & COUNTY MANAGER 1990 2 IR 66

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

Synopsis:

LOCAL GOVERNMENT

Local authority

Resolution - Validity - Challenge - Grounds - Planning - Permission - Decision of county manager - Decision contrary to resolution - Whether resolution ~ultra vires~ local authority - (1993/1278 P - Costello P. - 20/1/95) - [1995] 2 I.R. 447

|Child v. Wicklow County Council|

PLANNING

Permission

Refusal - Validity - Manager - Decision - Planning authority - Resolution - Validity - Resolution directed county manager to grant permission - Whether resolution ~ultra vires~ elected members of local authority - City and County Management (Amendment) Act, 1955, s. 4 - Local Government (Planning and Development) Act, 1963, s. 82 - Local Government (Planning and Development) Act, 1992, s. 19 - Constitution of Ireland, 1937, Article 40 - (1993/1278 P - Costello P. - 20/1/95) - [1995] 2 I.R. 447

|Child v. Wicklow County Council|

STATUTORY INTERPRETATION

Enactment

Application - Retrospection - Planning - Decision - Validity - Challenge - Procedure - Existing right to challenge by plenary summons not affected by subsequent legislation - (1993/1278 P - Costello P. - 20/1/95) - [1995] 2 I.R. 447

|Child v. Wicklow County Council|

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE PRESIDENT OF THE HIGH COURT, THE HONOURABLE MR JUSTICE DECLAN COSTELLO,ON 20TH JANUARY 1995

APPEARANCES

Plaintiffs in Person

For the Defendants:

John Gallagher SC

Barry Hickson BL

Instructed by

Maurice Cassidy

Law Officer

Wicklow Co. Co.

2 These proceedings arise from an application dated 13th October 1986 by Mr and Mrs Child for planning permission to develop a site on which they wish to build a dwellinghouse. Their application for planning permission was brought in the normal way to Wicklow County Council and in the normal way the County Manager requested further information so that the time within which the application should have been dealt with was extended and would have expired on 11th February 1987.

3 Mr and Mrs Child then contacted some of the elected members of the County Council who put down a resolution for consideration and adoption by the elected members directing the County Manager to give planning permission for the site. Consideration of this resolution was adjourned so that the elected members and the County Manager could carry out an inspection of the site.

4 Pending final determination of the resolution by the elected members, the County Manager had sent to them reports which he had obtained from the County Engineer and from the County Medical officer. The view expressed by Dublin Corporation on the proposed development was also given to the elected members of the County Council, as was the strong view expressed by the County Manager. The County Manager's view was that planning permission should be refused in light of the available expert evidence. Notwithstanding this advice, the elected members passed a resolution on 12th January 1987 directing the County Manager to grant planning permission. The County Manager then indicated to the elected members that the legal advice obtained by the Council was not to give effect to this resolution and on 29th January 1987 he made an order refusing to grant planning permission.

5 The question arises as to whether or not notification of the refusal to grant planning permission was sent out by the County Council, a matter which I will deal with in a moment.

6 Various steps were then taken by Mr and Mrs Child to endeavour to get the local authority to change its mind. After the decision to refuse planning permission had been taken, Mr and Mrs Child got an expert engineer's assistance in relation to their application. On his advice, no doubt, they subsequently decided to build the house. The house was built up to quite a considerable extent until proceedings were instituted against Mr and Mrs Child by Wicklow County Council. Furthermore, an application to retain the building which they had erected was brought by Mr and Mrs Child. As I understand it, this application was also refused.

7 As a result of proceedings heard before Lardner J. and the claim made on behalf of Mr and Mrs Child that the County Manager's order was invalid, these present proceedings were instituted on 19th February 1993. The claim made in these proceedings is that the County Manager's order refusing planning permission was invalid because he failed to carry out the instructions of the elected members under the section 4 resolution. In the forefront of this case, therefore, is the question of the validity of the resolution of 12th January 1987.

8 Before dealing with that question, however, I should deal with a couple of other important but subsidiary points that arise in this case. The first such point relates to whether there wasnotification of the refusal to Mrs Child, who had, in fact, signed the application for planning permission. Now, as these events occurred over seven years ago, the recollection of the witnesses must be dimmed and perhaps distorted by the trauma and anxiety produced by these events. However, the evidence given by Mr O'Connor on behalf of Wicklow County Council has not really been refuted by any evidence given by Mr and Mrs Child. The records of the County Council show that two notifications were sent by registered post and were not subsequently returned. In the absence of evidence from the people to whose houses the notifications were sent, I cannot decide that Mr and Mrs Child have failed to displace the evidence of Mr O'Connor and must conclude...