O'Connor v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 01 November 2005
• Neutral Citation: [2005] IEHC 352
• Docket Number: [No. 368 J.R./2005]
• Court: High Court
• Date: 01 November 2005

[2005] IEHC 352

THE HIGH COURT

[No. 368 J.R./2005]

O'CONNOR & ORS v CORK CO COUNCIL

JUDICIAL REVIEW

BETWEEN

DERRY O'CONNOR, CAROLINE O'CONNOR, FINBARR SHEEHAN, CARMEL SHEEHAN, PAT O'SULLIVAN, DECLAN SHEEHAN, BINA SHEEHAN, MICHAEL HOWE AND MAY HOWE

APPLICANTS

AND

CORK COUNTY COUNCIL

RESPONDENT

AND

MALOBAR PARTNERSHIP

NOTICE PARTY

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 17

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 27

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Costs - Planning application - Planning register - Planning application returned as invalid - Subsequent planning application - Whether planning authority must ensure accuracy of facilities made available to public - Respondent ordered to pay costs of applicant and notice party (2005/368JR - Murphy J - 1/11/2005) [2005] IEHC 352

O'CONNOR & ORS v CORK CO COUNCIL

Facts: the High Court granted leave to bring proceedings by way of judicial review on the ground that the respondent had received a planning application and failed in its statutory duty to copy the statutory letter of acknowledgment to the relevant planning file with the result that their public search facility was inaccurate and when the applicants enquired from the respondent as to whether there was a valid planning application before it in order that they make submissions thereon, they had been misinformed that there was no valid application before the respondent, thereby causing the statutory five week period for the making of submissions or observations to elapse without the applicants making the said submissions. The applicants and respondent reached a settlement whereby the notice party was required to re-advertise the planning application thereby entitled the applicants to make observations thereon. The applicants sought their costs of the application against the respondent. The notice party also claimed costs against the respondent on the basis that they were innocent and entitled to the benefit of the planning permission granted by it.

Held by Murphy J in awarding the applicants’ and notice party’s costs against the respondent that a planning authority, in making a facility available to the public, had to ensure its accuracy. As the computerised planning search system failed by reason of the misdating of the notice party’s second planning application, the applicants had been misled and their right to object had been frustrated due to the respondent’s failure. The notice party was innocent with respect to the misleading of the applicants.

Reporter: P.C.

Mr. Justice Roderick Murphy

1 The applicants, residents in the vicinity of the development at Coolroe Ballincollig, Co. Cork, being planning reference No. 05/1174, dated 1st March, 2005, seek the following reliefs:

2 (1) An order of prohibition, or in the alternative, an injunction, prohibiting Cork County Council, the respondent herein, from further considering planning application 05/1174;

3 (2) a declaration that if the planning application were valid the respondent had acted contrary to law in failing to place in the planning file a copy acknowledgement of the receipt of the application, and a declaration that they had acted contrary to law in falsely informing the applicants and each of them that a valid planning application had not been made in response to their numerous queries as to the status of that application.

4 By order dated 19th April, 2005 the High Court, MacMenamin J. gave leave to bring proceedings by way of judicial review on the ground that the respondent received the planning application 05/1174 on 1st March, 2005 and failed in its statutory duty to copy the statutory letter of acknowledgment to the relevant planning file with the result that when one of the applicants and the solicitor for the applicants on numerous occasions contacted the office of the respondent for information as to whether there was a valid application before the respondent in order that they make a submission to the respondent in relation to such application, they were on each occasion informed by servants or agents of the respondent that there was no valid application before the respondent, thereby causing the statutory five-week period for the making of submissions or observations to elapse without the applicants making submissions or observations as aforesaid.

5 The notice party says it is blameless in the matter and that to the extent that the applicants were ignorant of the planning application such ignorance derived from the failure of the respondent to properly enter details of the subject planning application in its weekly lists which derives from a statutory instrument rather than a statute. The presumption of the planning code is in favour of the development and any interference should be narrowly construed. The notice party is blameless and its constitutional right should not be prejudiced or interfered with by reason of a failure on the part of the applicant or the respondent. But for the application for judicial review the notice party would have been able to commence work on the development and has suffered significant and ongoing losses and additional costs.

6 A previous application, lodged on 18th February, 2005, 05/904, had been withdrawn by Malobar Partnership, the notice party.

7 Mr. Long, solicitor for the applicants, said that on 1st March, 2005 he had a consultation with seven of the nine applicants (the other two of whom were represented by their husbands) who all resided in the vicinity of the development. Each desired to object to the planning application. Mr. Pat O'Sullivan, the fifth named applicant, informed him that he had gone to the offices of the respondent on 1st March, had inspected the planning file and that it appeared that the plans had been returned to the applicants. On 2nd March he wrote to Mr. John Lennon, consulting engineer, asking him to attend the planning office to inspect the file as a matter of urgency. On 11th March, 2005 he attended on the respondent's offices and was informed that the original application had been returned to the applicants and that a new application would have to be submitted. There was not on the file a letter of acknowledgment of receipt of a valid planning application.

8 His office contacted the offices of the respondent on 7th, 11th, 14th and 16th March, 2005 and on each occasion was informed by a servant or agent of the respondent that the original application for planning permission had been returned and not resubmitted.

9 He said that Mr. Pat O'Sullivan attended the office of the respondent on 18th and 25th March and on 5th April. On the latter date he was informed that a valid application had been submitted on 1st March, 2005. On being informed by Mr. O'Sullivan the deponent immediately contacted the office of the respondent and was informed by a servant of the respondent that a valid application had been lodged on 1st March, 2005 and that the five-week period for making observations had consequently elapsed. He then immediately wrote to the respondent by letter dated 6th April, 2005, which referred to his attendance with the consulting engineer on that date.

10 On examining the planning file he discovered that the application form carried two stamps of receipt; one was dated 18th February, 2005 and the other 1st March, 2005. There was no letter from the County Council to the effect that the first application was invalid. If it was valid, then the planning department should have so notified the applicant and if not, then the entire application should have been returned to the applicants with reasons given for the invalidation.

11 Mr. Long believed that the applicants” rights to object had been frustrated by the failure of the respondent to comply with the statutory requirements. To acknowledge receipt of a valid planning application before a submission or observation may only be made within the period of five weeks, commencing on the date of receipt by the planning authority of a valid planning application.

12 By letter dated 5th April, Mr. Long had pointed out that article 17 of the 2001 Regulations provided that any application for planning permission should:

"Within a period of two weeks before the making of the planning application give notice of the intention to make the application in a newspaper in accordance with article 18 and give notice of the intention to make an application by the erection and fixing of a site notice in accordance with article 18."

13 He said that there was only one site notice and that if another set of plans were lodged on 1st March then a second notice should also have been erected.

14 2 2.2 Mr. O'Sullivan, by affidavit sworn on 7th June, 2005, said that he had become aware of...