Drumquin Construction (Barefield) Ltd v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Coffey
• Judgment Date: 19 December 2017
• Neutral Citation: [2017] IEHC 818
• Docket Number: [2017 No. 657 J.R.]
• Court: High Court
• Date: 19 December 2017

[2017] IEHC 818

THE HIGH COURT

JUDICIAL REVIEW

Coffey J.

[2017 No. 657 J.R.]

BETWEEN

DRUMQUIN CONSTRUCTION (BAREFIELD) LIMITED

AND

PADRAIG HOWARD

APPLICANTS

AND

CLARE COUNTY COUNCIL

RESPONDENT

Environment, Planning & Construction - Planning and Development Acts 2000-2011 - Expiry date of planning permission - Enforcement notices - Extension of planning permission

Facts: The applicants sought a declaration that the order made by the local county council under ss. 42 and 42 (a) of the Planning and Development Acts, 2000-2011 had the effect of extending the original planning permission from the correct date of expiry of the said permission as required under s. 251 of the Planning and Development Acts 2000-2011 ('Act'). The issue arose as to the date of expiry of the planning permission. The respondent claimed that they had issued the enforcement notices under s. 154 of the Act as the extended planning permission had expired and the ongoing works constituted an unauthorised development.

Mr. Justice Coffey refused to grant any reliefs to the applicants. The Court held that although there was an error made by the respondent in calculating the date of expiry of the planning permission, yet the applicants were not entitled for any relief as their application was out of time. The Court noted that an extension order made under s. 42(1) of the Act merely extended the planning permission by a specific additional period, which had already been granted under s. 34 of the Act. The Court observed that the said additional time began to run from the date on which the permission expired and not from any other date.

JUDGMENT of Mr Justice Coffey delivered on the 19th day of December, 2017

1 This is an application for judicial review which arises from a dispute as to the expiry date of an order made by Ennis Town Council extending the life of a planning permission and the consequent validity of enforcement notices issued by the respondent against the applicants in reliance on the earlier of two possible dates.

2 The applicants seek the following reliefs:

(1) a declaration that the order made by Ennis Town Council dated the 5th September, 2012, made pursuant to ss. 42 and 42 (a) of the Planning and Development Acts, 2000-2011 (hereafter 'the Act') should be interpreted having regard to the provisions of s. 251 of the Act as extending the appropriate period of planning permission reference 06/46 by an additional period from the correct date of expiry of the said permission being the 29th August, 2012, until the 29th August, 2017;

(2) a declaration that the enforcement notices issued by the respondent dated the 20th July, 2017, and addressed to each of the applicants pursuant to s. 154 of the Act in respect of the development are invalid, ultra vires and of no effect;

(3) an order of certiorari quashing the said enforcement notices dated the 20th July, 2017.

Factual Background

3 On the 16th July, 2007, Ennis Town Council granted planning permission to the second named applicant (who was then the owner of the relevant land) to construct 29 houses and 18 apartments at Tulla Road, Roslevan, Ennis, County Clare ('the permission').

4 As the order granting the permission did not specify the appropriate period for which development was authorised, the permission was by virtue of s. 40(3)(v) of the Act for a period of five years beginning on the date of the grant of the permission.

5 Section 251 of the Act of 2000 provides that the period between the 24th December and the 1st January, both days inclusive, should be disregarded when calculating, inter alia, any 'appropriate period' under the Act. Accordingly, nine days must be added to each year of the five years for which the permission was granted with the result that the permission expired on the 29th August, 2012.

6 On the 13th July, 2012, the second named applicant completed an application form to extend the appropriate period of the permission for an additional period of five years from the 15th July, 2012.

7 The said application form was enclosed in a covering letter dated the 12th July, 2012, from the applicants' planning advisors who sought an extension of five years from the 15th July, 2012, to 'July, 2017'.

8 On the 5th of September, 2012, the designated Senior Executive Officer of Ennis Town Council made an order pursuant to ss. 42 and 42(a) of the Act ('the extension order'), granting an extension to the permission for five years in the following terms:

'I, hereby extend the appropriate period of Planning Permission Reference 06/46 for a period of five years from the date of expiry i.e. 15th July, 2012, to 15th July, 2017.'

9 By letter dated the 5th September, 2012, Ennis Town Council wrote to the second named applicant to inform him that the permission had been extended 'up to and including the 15th July, 2017'. The letter enclosed a notification which stated that the permission 'will now cease to have effect on the 15th July, 2017'.

10 On the 1st June, 2014, Ennis Town Council was dissolved and ceased to exist, and the respondent became the successor to the Town Council on that date.

11 On a date unspecified in 2015, the second named applicant sold the relevant lands to a Pat Murphy, who in June 2016, sold the lands to the first named applicant, of which the second named applicant is a director.

14 On the 10th July, 2017, the applicants commenced works on the relevant site which continued up and until the 27th October, 2017.

15 There were two pre-commencement conditions attached to the permission, namely, conditions 16 and 41. Condition 16 required the applicants, prior to commencement of the development, to lodge with the planning authority an insurance bond in the sum of €145,000 to secure the satisfactory completion of the proposed development. Condition 41 required the applicants, prior to the commencement of the development, to pay a contribution of €554,499.50 to the planning authority in respect of public infrastructure and facilities benefiting the development.

16 Although the applicants made endeavours to reach an accommodation with the respondent, the fact is that the works began and continued in circumstances in which there was prima facie non-compliance with the relevant conditions. Neither the existence of the said conditions, nor the fact of prima facie non-compliance were disclosed in the affidavits sworn by the second named applicant to ground the application for leave to this Court.

17 At all times prior to the 4th July, 2017, the parties had proceeded on the understanding that the extended permission would expire on the 15th of July, 2017. At a meeting with the respondent on the 4th July, 2017, the applicants' planning advisors, for the first time, made reference to s. 251 of the Act. By letter dated 19th July, 2017, the respondent wrote to the applicants' planning advisors to state that the extension order had specified the date of expiry to be the 15th July, 2017 and to assert that the permission had expired.

18 On the 20th July, 2017, the respondent issued enforcement notices pursuant to s. 154 of the Act against both applicants, on the basis that the extended permission had expired and that the ongoing works constituted an unauthorised development.

Relevant legislation

19 The permission authorising development of the site was granted under s. 34 of the Act, but was unspecified as to the period of its duration and was, therefore, by virtue of s. 40(3)(b) of the Act for a period of five years.

20 Section 40(3) of the Act states that the 'appropriate period is:-

(a) in case in relation to the permission a period is specified pursuant to

section 41, that period, and

(b) in any other case, the period of five years beginning on the date of the grant of permission'.

21 The calculation of the 'appropriate period' and other time limits over holidays is provided for by s. 251 of the Act which states:-

'Where calculating any appropriate period or other time limit referred to in this Act or in any regulations made under this Act, the period between the 24 ^th day of December and the first day of January, both days inclusive, shall be disregarded.'

22 The meaning and effect of s. 251 of the Act was considered by Hedigan J. in Browne v Kerry County Council and Others [2011] 3 IR 514, who held that although 'curious', the provisions of...