Coll v Donegal County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 07 July 2005
• Neutral Citation: [2005] IEHC 231
• Court: High Court
• Date: 07 July 2005

COLL v DONEGAL CO COUNCIL

Between:

Kathleen Coll

Applicant

And

Donegal County Council

Respondent

And

Liam Gillespie

Notice Party

[2005] IEHC 231

Record Number: No. 1052 JR/2004

THE HIGH COURT

EASEMENTS

right of way

Public right of way - Extinguishment procedures - Motion to extinguish public right of way - Rejection of motion - On subsequent motion revision of decision - Validity of revised decision - Whether power to table second motion - Legitimate expectation - Whether applicant had legitimate expectation decision to refuse extinguishment would not be revisited - Locus standi - Whether failure of applicant to participate in planning process denies standing on issue of validity of extinguishment procedures - Roads Act 1993 (No14), s 73 - Relief refused

ROADS ACT 1993 S73

PLANNING & DEVELOPMENT ACT 2000 S42

P & F SHARPE LTD v DUBLIN CO COUNCIL 1989 ILRM 565 1989 IR 701

FLANAGAN v GALWAY CITY & COUNTY MANAGER 1990 2 IR 66

CARTY v FINGAL CO COUNCIL 1999 3 IR 577

LOCAL GOVT ACT 2001 S44

LOCAL GOVT ACT 2001 SCHED 10

PLANNING & DEVELOPMENT ACT 2000 S42(1)(c)(iii)

1 Mr Justice Michael Peart delivered on the 7th day of July 2005 :

2 The Notice Party applied for planning permission for the erection of a shopping centre, and filling station with sewerage treatment plant at Bunbeg, Co. Donegal in or about December 1998 (Planning Ref: 98/3392). This application was refused by the Respondent on the 29th April 1999. However, the Notice Party appealed that refusal, and by Order of An Bord Pleanála dated 23rd November 1999, permission was granted subject to certain conditions, three of which were required to be complied with before development was commenced, and in particular, as far as relevance to these proceedings is concerned, the following condition:

3 2 "3. (1) The proposed road realignment and works shall be carried out by the developer and shall comply in all respects with the requirements of the planning authority. The road works shall be completed to the satisfaction of the planning authority before commencement of use of the development.

4 (2) Details of the works shall be agreed with the planning authority before development commences."

5 This road realignment involved the extinguishment of the public right of way over a small portion of the existing Strand Road, leading up to where it meets the main R257, thereby incorporating that area of roadway into the development site, and its replacement by a new section of road on land up to that main road, owned by the notice party, but which would be duly vested in the respondent on completion, thereby providing a new junction with the R257.

6 It is necessary to say at this point that the applicant contends that the fact that the road might be closed and replaced by an alternative stretch of road adjacent to it, was not something which was obvious from the site notice erected at that time, or the notice published in the newspaper.

7 While some objections were lodged to the application, neither the applicant in these proceedings, Kathleen Coll, nor the many others now forming the Strand Residents Association made any objection to the plans as originally submitted since in their view there was nothing in the published notice or site notice erected, to indicate that there was to be any alteration in the road itself, and accordingly they did not participate in the planning application and appeal process. That is a matter of some controversy, as an officer of the respondent, John McLoughlin has stated in his affidavit that in fact some of the persons who lodged objections to the application for planning permission mention the proposed realignment of the road, and he exhibits these letters of objection. However Counsel for the applicant herein refers to the fact that this information was not apparent from the published notice or the site notice.

8 It was quite some time later, in 2001 as a matter of fact, that she and other residents in the area discovered that a condition of the permission granted involved the closure of the existing road at the site of the development and its replacement with a road leading to the main road by an alternative route.

9 While Kathleen Coll is the only named applicant in these proceedings, she is clearly acting also on behalf of the Strand Road Residents Association ("the association"). They have objections, including on safety grounds, to the closure of the existing road and its replacement by the proposed new road, and it is clear that if it had been proposed as part of the original application they would have exercised their right to object to the application, and thereby become entitled also to participate in any appeal process as well.

10 On the 30th July 2001 a firm of planning and design consultants wrote on their behalf to the respondent pointing out that the development appeared to have commenced before the three pre-commencement conditions had been complied with, and requested an Enforcement Notice to be served on the notice party to cease development until all these conditions were complied with. Such a notice was served as required dated the 10th August 2001. There was contact between the notice party and the respondent thereafter including a meeting on the 28th August 2001, which was followed up by a letter dated 4th September 2001 from the respondent which refers, inter alia, to Condition 3 in the following terms:

"Condition No. 3: Road Requirements

11 The Planning Authority notes that agreement was reached between yourself and Eunan O'Donnell (Executive Engineer) regarding the required technical standards and so on. The Executive Engineer's record of the meeting has been placed on file and is considered to be a more than adequate equivalent of the submission of a plan by yourselves.

12 However, the Planning Authority wishes to advise that it requires to give further consideration to two associated fundamental legalistic/procedural matters before it will be in a position to conclude its findings on Condition No. 3. The matters in question are the possible requirements for the adoption of Orders/Resolutions by Members of DCC for:

13 1. the extinguishment of the existing public right of way on the condition that a suitable alternative can be delivered; and

14 2. the vesting of the alternative in the DCC."

15 The respondent concluded this letter by stating that the advice was being taken from the County Solicitor as to the most appropriate course of action to be taken, and that upon receipt of this advice, it would be in touch with the notice party further; but it emphasised that in the meantime resumption of work on site could not be authorised.

16 Steps were not taken by the respondent to put in motion the procedure to extinguish the public right of way until such time as the notice party had put the alternative road in place. This method of proceeding was objected to by solicitors acting for the association on the ground that it would prejudice the position of the objectors since, if the notice party had expended large sums of money in putting the new road in place, he could argue that it would not be fair and reasonable to ask him to close that new road, in the event of the Council deciding that the existing public right of way should not be extinguished. However the respondent replied by letter dated 13th December 2001 that it had made it clear to the notice party that the extinguishment procedure was a self-contained procedure with no pre-determined outcome and that as such the notice party could have no expectation that the public right of way would definitely be extinguished.

17 Indeed in this regard, there was an Agreement dated 25th February 2002 entered into between the respondent and the notice party dealing with arrangements arising from the construction of the new road, and among the clauses in that Agreement is the following:

"5. .........In relation to the existing public right of way on the section of the public road to be replaced the Council proposes on the completion of the said new road works and the handing over of same by the Applicant to commence the procedure for extinguishment thereof under Section 73 of the Roads Act, 1993. That procedure is a self-contained one with no predetermined outcome and the Council can give no warranty or assurance and the Applicant can have no expectation that the public right of way will definitely be extinguished. In the event that the public right of way is not for any reason extinguished and the Applicant is unable for that reason to proceed with this development no action will lie against the Council in such situation."

18 The procedure under s. 73 of the Roads Act, 1993 requires that a notice be published in one or more newspapers; a notice be affixed at each end of the right of way proposed to be extinguished; that objectors are therein notified to lodge objections before a specified date; and that the Council may, if it considers it appropriate hold an oral hearing at which objections can be made.

19 In the present case the notice published and affixed at the site is dated 3rd October 2002 and objections were to be made in writing on or before 29th November 2002. Objectors sought an oral hearing of their objections but the respondent did not consider that an oral hearing was appropriate. Written objections were lodged. Objections to the extinguishment of this section of road were made mainly on safety grounds related to the design of the new road and junction, given the alteration of sight lines at the new junction, as well as what they regarded as the unnecessary steepness of the new road caused by an increase of one metre in the site which they also maintained was in breach of the planning permission granted. They were also concerned about adverse effects of the new...