O'Connor's Downtown Properties Ltd v Nenagh Urban District Council
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 01 January 1993 |
| Neutral Citation | 1992 WJSC-HC 3917 |
| Docket Number | No. 221/1991,[1991 No. 221 J.R.] |
| Court | High Court |
| Date | 01 January 1993 |
1992 WJSC-HC 3917
THE HIGH COURT
BETWEEN
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)
CONLON CONSTRUCTION LTD, STATE V CORK CO COUNCIL UNREP BUTLER 31.7.75
NCE LTD, STATE V DUBLIN CO COUNCIL 1979 ILRM 249
LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) REGS 1982 SI 342/1982 REG 26
LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) REGS 1982 SI 342/1982 REG 27
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)
O'SULLIVAN & SHEPHERD PLANNING LAW IN IRELAND
WALSH PLANNING & DEVELOPMENT LAW 2ED
DWYER N0LAN V DUBLIN CO COUNCIL 1986 IR 130
AHERNE V MIN FOR INDUSTRY & COMMERCE 1990 IR 55
HORNE V FREENEY UNREP MURPHY 7.7.82 1982/11/2157
Synopsis:
DELAY
Tribunal
Application - Determination - Time limit - Planning application - Default permission - Entitlement - Planning authority insisted on requirements after receiving complete information - Failure to determine application within appropriate period - (1991/221 JR - O'Hanlon J. - 22/9/92)- [1993] 1 I.R. 1
|O'Connor's Downtown Properties Ltd. v. Nenagh U.D.C.|
PLANNING
Development
Permission - Application - Decision - Delay - Default permission - Entitlement - Planning authority insisting on requirements after receiving complete information - Failure to determine application within appropriate period - Local Government (Planning and Development) Regulations, 1977 (S.I. No.65), regs. 26, 27 - Local Government (Planning and Development) (Amendment) Regulations, 1982 (S.I. No. 342) - Local Government (Planning and Development) Act, 1963, s.26 - (1991/221 JR - O'Hanlon J. - 22/9/92)- [1993] 1 I.R. 1
|O'Connor's Downtown Properties Ltd. v. Nenagh U.C.C.|
Judgment delivered by O'Hanlon J., the 22 day of September, 1992.
The Applicant is a limited company carrying on a retail grocery and supermarket business in the town of Nenagh, Co. Tipperary. The principal of the firm is Joseph O'Connor who has been in the business in Nenagh for 50 years and upwards. The place of business has at all relevant times been located at Kenyon Street, one of the main streets in Nenagh, but in recent years by reason of structural considerations affecting the original property at 69, 69A and 70 Kenyon Street at the junction of Pearse Street/Kenyon Street, a decision was taken to move to better premises further along Kenyon Street and close to the junction with Abbey Street. The premises acquired for this purpose were known as the Old Garda Barracks and it has been necessary to carry out extensive works of alteration and refurbishment to make them suitable for use as a supermarket.
This has hitherto entailed the submission of three successive applications for planning permission to Nenagh Urban District Council. The first application, No. 2206, received on 18th October, 1990, was submitted on behalf of the Applicant by Eamonn Stafford, Building Design and Cost Consultant, of Dungar, Roscrea, and related to the development of a new shop-front and retail shop. In the long-term it is intended that this area will be used to accommodate off-licence sales and other ancillary services, with access to the supermarket proper after one has passed through this section of the premises.
Permission was granted for this proposed development (although referring to the location as "Barrack Street, Nenagh") on the 15th January, 1991, subject to the conditions set out in the notification of decision to grant permission dated 14th December, 1990, and it appears that a considerable amount of work has been carried out in reliance on that grant of permission.
A further application for development permission, No. 32/2236, was lodged on the 20th March, 1991, seeking permission to erect an extension to retail outlet at rere of Kenyon Street, Nenagh. It related to a large area immediately to the rere of the premises referred to in the first application for planning permission and envisaged opening up the new area for use as a supermarket sales area with the usual display areas and check-out facilities.
In this case the application was again successful and planning permission was granted on the 14th June, 1991, subject to the conditions set out in the notification of decision to grant permission dated 10th May, 1991.
These facilities were not sufficient for the Applicant's purposes, however, and by application dated the 5th July, 1991, No. 32/2262, planning permission was sought for the construction of "Extension to Retail Outlet" to be located directly behind the supermarket sales area and intended to accommodate meat sales and storage for meat, fruit, vegetables and other products, and staff-rooms. The area involved was given as 391 square metres and the length of road frontage (at rere) as 13m.
It is the fate of this third application for planning permission which falls to be determined in the present proceedings.
Notice was given on behalf of the Respondent, dated the 17th July, 1991, requiring the Applicant to submit, within one month from the date of that letter, the following additional documents and/or particulars:-
a 1 (a) Provide the developer's overall and detailed proposals and planning strategy for the foreseeable future for development of the total area of his sites located off Kenyon Street and Abbey Street as outlined in red on the attached map.
(b) Is it the developer's intention that the entire area of sites as outlined in red on the attached map will be operated as one single unit, with ancillary services? If so, please produce documentary evidence of the legal interest which O'Connor's Downtown Properties Ltd. has in that site area which was the subject of Planning Permission File No. 32/2206, the Old Barracks, for which ownership was stated to be Joseph O'Connor (Nenagh) Ltd.
b 2 (a) Provide overall and detailed proposals for compliance with the conditions attaching to Planning Permission File No. 32/2236.
(b) Show how provision was made to comply with the conditions attaching to Planning Permission No. 32/2236 in the layout presented on the Planning Permission application documents for Planning File No. 32/2262.
(c) Provide layout plans showing all proposed retail areas.
(d) Regularise permitted uses of all areas including for example for store on Planning Permission File No. 32/2236.
3. Provide detailed proposals for loading and offloading of service vehicles including proposed access routes from the main streets/roads.
4. Details of all proposed car parking and including (a) details of intentions and strategy relating to the proposed barrier type entrance; (b) layout of all car parking areas, roads and spaces; (c) evidence of ownership of the proposed detached car parking area off Abbey Street; (d) proposed access routes from the main streets/roads, and (e) provide confirmation that the detached area for car parking (off Abbey Street) will not be disposed of or utilised for alternative purposes.
To this Notice Mr. O'Connor replied in person by letters dated 18th and 19th July, 1991, (with enclosures) in which he gave a response to each of the queries which had been raised. Further correspondence took place concerning the application during the month of August, 1991. It appears that there was some personal contact at that stage between Mr. O'Connor and Michael John Gaffney, the Planning Officer and Senior Executive Engineer of Planning and Development in Tipperary (North Riding) County Council, about the matter, and according to oral evidence given by Mr. O'Connor he was told by Mr. Gaffney during the early weeks of August, 1991, that the application would be turned down on the following Monday unless he got Messrs. Farah, Architects, of Friar Street, Thurles, to submit a new plan showing a radically different layout for the interior of the supermarket, with the check-outs located in the centre of the store and diverting the customers away from Kenyon Street to an exit leading onto a narrow side-street. The "gondolas" or display counters had also to be re-located to accommodate this altered layout.
Mr. O'Connor said that he reluctantly allowed this compromise arrangement to go ahead and a new plan was put in on behalf of the Applicant on the 19th August, 1991, prepared by Mr. Farah, and embodying the changes required by Mr. Gaffney. The plan as submitted contains a note which reads as follows: "NOTE: This drawing supersedes the previous layout submitted to the planning authority Nenagh UDC No. N/2262".
In the course of his evidence Mr. O'Connor also said: "Farah said Gaffney wanted him to submit a complete new application. I said this would give them a complete two months and not to do anything but a new layout plan on Gaffney's instructions."
A letter followed from Mr. Farah to Mr. Gaffney on the 27th August, 1991, which read as follows:
Dear Mr. Gaffney
In connection with the above subject, I would like to confirm that the revised drawing submitted to you on the 19th/08/91 by me is the only valid layout for the Planning Application No. 32–2262.
Dear Sir, your approval will be based on the documents already presented to you after your recommendations have gratefully been observed and applied. Any changes in the layout other than what is submitted to you, is my client's responsibility, and subject to separate application to the Planning Authorities.
I would like to take the opportunity to thank you for your concern and for your valuable time put in this matter.
Yours faithfully
Michael J. Farah
BSc Arch. Dip UP
On the 16th September, 1991, Mr. A. McCormack, Town Clerk for Nenagh Urban District Council wrote as follows to the Applicant:
Dear Sir
I...
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