Crodaun Homes Ltd v Kildare County Council

JurisdictionIreland
CourtSupreme Court
JudgeO'HIGGINS C.J.,GRIFFIN J.
Judgment Date01 January 1983
Neutral Citation1982 WJSC-SC 467
Docket Number(47-1981)
Date01 January 1983
CRODAUN HOMES LTD. v. KILDARE CO. COUNCIL
CRODAUM HOMES LIMITED
Plaintiffs/
Respondents

and

KILDARE COUNTY COUNCIL
Defendants/
Appellants

1982 WJSC-SC 467

O'Higgins C.J.

Griffin J.

Hederman J.

(47-1981)

THE SUPREME COURT

1

JUDGMENT delivered on the 27th day of April1982by O'HIGGINS C.J.

2

In this case Mr. Justice Barrington, in the High Court, decided that permission for a development applied for by the Respondents should be regarded as having been granted by the Appellants in accordance with the provisions of Section 26(4) of the Planning and Development Act 1963, by reason of the Appellants" failure to give notice of their decision within two months of the receipt by them of the Respondents"application. Against this decision the Respondents have brought this appeal. The relevant facts are as follows.

3

On the 3rd September 1979 the Appellants acknowledged the receipt of an application from the Respondents for planning permission in respect of the erection of "fourteen bungalows at Leixlip Gate", Co. Kildare. The application had in fact been made on the 1st August 1979, but thenewspaper notice which accompanied it had been inadequate. It was, therefore, necessary for the applicants to insert a fresh notice and this was done at the request of the Appellants. The Respondents did not hear further from the applicants until they received a letter dated the 13th November 1979 requiring them to open four trial holes on the site so that the suitability of the soil could be ascertained. Following this letter the Appellants again wrote to the Respondents by letter dated the 19th November 1979 in the following terms:

"A Chairde,"

4

I am directed by the County Manager to refer to your application for planning permission in respect of the above development, and I must again refer to the advertisement in this matter, the notice submitted is still inadequate to comply with the regulations. The location "Leixlip Gate" does not state the location of the lands sought to be developed as required by the regulations and persons who may be affected by the development are not given the notice to which they are entitled. Please therefore submit a notice indicating that permission is sought for the erection of fourteen bungalows at Kilmacradock Upper.

5

Pending receipt of this notice your appllicationcan not be deemed to be valid.

6

Mise le meas."

7

This letter brought a reply on behalf of the Respondents written by their architects and dated the 30th November 1979, in the followingterms:

"Dear Sir,"

8

Crodaun Homes Limited made an application for planning permission by letter dated the 1st August 1979. Additional information was requested and receipt of this was acknowledged by the County Council on the 3rd September 1979. A notice served by the County Council requesting further additional information with regard to the above application for planning permission was issued on the 13th November 1979.

9

Accordingly, pursuant to the provisions of the Local Government (Planning and Development) 1963, the Council must be deemed to have granted permission on the expiration of two months from the date of the application, namely, 3rd September 1979.

10

In these circumstances, we have been instructed to apply to you for the issue of an unconditional permission in the terms sought by the application. If we fail to hear from you within fourteen days from the date of this letter, our instructions are to apply to the High Court by way of mandamus to compel the issue of such remission. Please let us hear from you by return.

11

Yours faithfully."

12

The Appellants declined to accept the contention contained in this letter of the 30th November 1979 and issue was joined between the parties. The Respondents then commenced these proceedings seeking a declaration that they had secured planning permission. The result of these proceedings was that they secured the declaration in the High Court and this appeal has been brought as a consequence

13

In order that Section 26 subsection (4) of the Local Government (Planning and Development) Act 1963may operate it is, inter alia, necessary that the application for planning permission shall have been made "in accordance with the permission regulations". These regulations are contained in S.I. 65 of 1977, and in particular in Part IV thereof. Paragraph 15 of Part IV is the relevant paragraph. It provides that a notice published in a newspaper shall contain as a heading "the name of the city, town or county in which the land" is situate. It is not disputed that the notice with which this case is concerned complied with this provision. The paragraph goes on to provide that the notice shall amongst other particulars state "the locationof the land or the address of the structure to which the application relates (as may be appropriate)". It is, as indicated, theAppellants" contention that the description "Leixlip Gate" does not comply with this requirement and that the notice should have stated "Kilmacradock Upper". The learned Trial Judge rejected this contention and, as indicated, held that since the application was received on the 3rd September 1979 and two months had passed expiring on the 3rd November 1979 without the notification of a decision that the provisions of Section 26 subsection (4) operated. He based this decision on his finding that the application received on the 3rd September 1979 was in accordance with the planning permissions and that in particular the description "Leixlip Gate" was sufficient to state the location of the land in question.

14

I have considered very carefully the transcript of the evidence adduced before the learned Trial Judge. I note that the description "Leixlip Gate", as a location, is well known. The doctor and the postman and many people living in the area gave evidence to this effect....

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