Dublin County Council v Marren

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-HC 1137
• Docket Number: No. 25 M.C.A./1983
• Court: High Court
• Date: 01 January 1985

1985 WJSC-HC 1137

THE HIGH COURT

No. 25 M.C.A./1983

No. 229 Sp Ct. 5/1983

DUBLIN COUNTY COUNCIL v. MARREN

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1976

AND IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Applicant

and

MICHAEL MARREN

Respondent

and

BETWEEN:

MICHAEL MARREN

Plaintiff

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Defendant

Citations:

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S39

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 29

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

MURPHY, STATE V DUBLIN CO COUNCIL 1970 IR 253

Synopsis:

LOCAL GOVERNMENT

Planning

Permission - Application - Expiration of two months - Whether permission deemed to have been given - Application not made in conformity with regulations - Planning authority without power to grant permission which contravenes development plan - Default permission inapplicable where contravention of plan involved - Default permission not established (1983 No. 25 MCA - Barrington J. - 23/7/84).

Dublin County Council v. Marren

1 Judgment of Mr. Justice Barrington delivered the 23rd day of July, 1984.

2 The first of these cases is a Motion under Section 27 of the Local Government (Planning and Development) Act 1976in which the County Council seeks an order restraining Mr. Marren, as respondent, from carrying out any unauthorised development on lands at Brazil, Swords, in the County of Dublin.

3 The second proceedings are an action in which Mr. Marren, as plaintiff, seeks a declaration that he has, in the events which have happened, obtained planning permission by default for the development in question.

Background

4 The background to the case is as follows -

5 Mr. Marren resides at 32 Oakwood Avenue, Swords, County Dublin, and is joint owner, with his brothers, of certain lands at Brazil, Swords, County Dublin. On these lands stand a motte and baily known as "The Brazil Motte". This motte is a national monument and is listed for preservation under the County Council's Development Plan. Since the present dispute arose the Commissioners for Public Works, have, by order dated the 16th June, 1983, made a preservation order in respect of the motte.

6 Mr. Marren on, the 4th July, 1978, applied for planning permission to build a bungalow on these lands. The register reference number of this application is R.A. 1116. On the 1st September, 1978 the Planning Authority refused permission.

7 Their reasons were as follows -

8 2 "1. The site is located in an area for which the zoning objective, as expressed in the County development plan, is to provide for the further development of agriculture. This proposal would be in conflict with that objective and so would be contrary to the proper planning and development of the area.

9 3 "2. The site is located immediately adjoining Brazil Motte, which is a monument listed under the National Monuments Acts, 1930and 1954, and to locate a dwelling in such close proximity to it would detract from its value as a national monument.

10 3. The proposed development is undesirable, as access to it is on a bad bend and visibility at the access part is poor and would give rise to a traffic hazard.

11 4. There is no public sewer available to serve the development and no proposal for one.

12 5. The proposed development would be premature by reason of the said existing deficiency in the provision of public pipe sewage facilities an the period within which such deficiency may reasonably be expressed to be made good.

13 6. The proposed development is unacceptable on public health grounds because it would not be possible to accommodate satisfactorily a house, septic tank and percolation area within the confines of the site, having regard to its restricted size and shape. Drainage by means of septic tank would also be likely to cause pollution of adjoining river."

14 The dispute known as the postal strike began on the 18th February, 1979 and continued until the 26th June, 1979.

15 Meanwhile Mr. Marren had had informal discussions with officers of the County Council with a view to meeting technical objections to his proposed development. On the 26th March, 1979 Mr. Marren visited the County Council's Planning Department and handed in an application for planning permission. The register number of this application is S.A. 460. The application was accompanied with a covering letter in which Mr. Marren stated -

"I am re-applying for permission for a house at Brazil, Swords. The proposed access has been agreed with the Roads Engineer. The septic tank arrangements have been agreed with the Health Inspector. The site is part of farm of 96 acres and I need to be near it.

Signed:

Michael Marren."

16 Two months passed and Mr. Marren heard nothing from the County Council.

17 I am satisfied on the basis of the evidence of the County Council officials, that the postal strike presented them with serious difficulties. They could not communicate with applicants for planning permission in the normal way because of the strike. Initially they made arrangements whereby important letters would be delivered personally to applicants by officials of the Council. But this involved the County Council in a dispute with its own officials who took the view that they should not undermine the position of the Post Office workers by delivering letters which would otherwise be sent by post. The Council attempted to contact Mr. Marren by "phone but failed to do so apparently because of confusion arising from a change of street names in the Swords area.

18 At any rate, and despite these various difficulties, the County Council did succeed, on or about the 17th June, 1979 in delivering to Mr. Marren a letter dated the 25th May, 1979. The letter was, apparently, written the day before the relevant two month period had expired but was not delivered to Mr. Marren until long after it had expired.

19 The letter was headed Re Bungalow at Brazil, Swords, County Dublin, and read as follows:-

"A Chara,"

20 With reference to your planning application received here on the 26th March 1979, in connection with the above, I wish to inform you that before your application can be considered under the Local Government (Planning and Development) Acts 1963and 1976the following additional informati??? must be submitted in quadruplicate -

21 1. As the site is located within an area of high amenity applicant to indicate how the proposed development is compatible with this use zoning.

22 2. As the plans submitted show the proposed bungalow site in close proximity to a national monument, the applicant to indicate whether the proposed bungalow could be relocated within the lands under his ownership so as not to interfere with the "Brazil Motte".

23 3. Evidence that the proposed dwelling can be adequately drained by way of septic tank.

24 N.B. Please mark your reply "Additional Information" and quote the register reference number given above."

25 On the 19th June, 1979 Mr. Marren wrote to the County Council referring to the relevant provisions of the Planning Act 1963, to the date of his application and to the fact that he had not received any notification within the statutory period and went on to say that he "must therefore assume permission to be granted". He added that he was arranging to proceed immediately with the development.

26 On the 2nd July, 1979 the County Council wrote back to Mr. Marren stating that "the contents of your letter have been noted".

27 Mr. Marren stated in evidence that he later received a letter or notice from the County Council acknowledging that he had in fact obtained planning permission by default. He says he put this letter in a safe for safe-keeping but that when he later went to look for it he could not find it. Other persons had access to the safe.

28 Mr. Marren also stated that he showed this alleged acknowledgment to friends and relations and some of these gave evidence before me. Their evidence was not however conclusive. They had been shown some document but they were not absolutely certain what it was.

29 The County Council officials were emphatic that there was no copy of any such acknowledgment on the file and no record of any such acknowledgment being issued. They also emphatically denied that any such acknowledgment had, to their knowledge, been in fact issued.

30 Meanwhile Mr. Marren had obtained building bye-law approval dated the 25th May, 1979.

31 I believe that Mr. Marren and his witnesses are telling the truth to the best of their recollection when they say they saw a document from the County Council acknowledging that Mr. Marren had planning permission for this development. In view however of the absence of any copy of any such document on the County Council's files and the firm evidence of the County Council officials that they have no knowledge of any such document being prepared or issued, I think it probable that Mr. Marren and his witnesses are mistaken. What they saw may merely have been the County Council's letter of the 2nd July, 1979 or the bye-law approval or some other such document. However I do not think that the existence or non-existence of any such acknowledgment can be decisive for the purposes of this case. Either Mr. Marren has obtained planning permission by default or he has not. This is not merely an inter partes matter between him and the County Council and the existence or non-existence of any purported acknowledgment from the County Council...