Duffy v Clare County Council

• Jurisdiction: Ireland
• Judge: Max Barrett
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 618
• Docket Number: [2015 No. 317JR]
• Court: High Court
• Date: 08 November 2016

[2016] IEHC 618

THE HIGH COURT

Barrett J.

[2015 No. 317JR]

IN THE MATTER OF AN APPLICATION ON NOTICE FOR LEAVE TO APPLY FOR JUDICIAL REVIEW, AS PRESCRIBED UNDER SECTION 50A(2) OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED OF A DECISION OF CLARE COUNTY COUNCIL REGARDING PLANNING APPLICATION REFERENCE P15/88

BETWEEN:

MICHAEL DUFFY

APPLICANT

– AND –

CLARE COUNTY COUNCIL

RESPONDENT

– AND –

BOARD OF MANAGEMENT, SCOIL NAOMH PHÁDRAIG

NOTICE PARTY

Environment & Planning – S. 50A(2) of the Planning and Development Act, 2000 as amended – Planning permission – Public participation – Reg. 31 of the Planning and Development Regulations 2001 – Out of time application – Amendment of pleadings – Certiorari.

Facts: Following the return of the letter of the applicant being out of time in relation to the notice party's proposal for permission from the respondent for proposed development and the decision of the respondent to grant a conditional planning permission for the proposed development to the notice party, the applicant had now commenced the within proceedings for an order of certiorari for quashing the respondent's decision. The applicant had challenged the decision of the respondent. The applicant contended that there was breach of reg. 31 of the Planning and Development Regulations 2001 by early issuance of the planning permission to the notice party by the respondent. The applicant further sought an order to the effect of making an amendment of his pleadings.

Mr. Justice Max Barrett refused to grant the relief sought by the applicant. The Court held that the within application was out of time and no amendment of the pleadings should be allowed at the present time. The Court found that the applicant had failed to make a good ground as to why the time limit should be extended by the Court. The Court found that though the fulfilment of notification requirements was of essence given the significance that was attached to public participation by the planning code, the fact that the applicant failed to bring the appeal within the prescribed time-limit meant that no prejudice of any type was caused to the applicant by early issuance of planning permission. The Court held that in the present case, if the applicant was allowed to amend his pleadings, it would greatly prejudice the rights of the opposite party.

JUDGMENT of Max Barrett delivered on 8th November, 2016.

Max Barrett

I. Background

1 On 19th February, 2015, Clare County Council received an application from the above-named Board of Management for permission to replace an existing septic tank serving Scoil Naomh Phádraig in O'Callaghan's Mills, a village in County Clare. At all times thereafter, this application was available for public inspection at the Council's offices and at an online address.

2 Pursuant to Article 29 of the Planning and Development Regulations 2001, as amended, Mr Duffy had the opportunity during the five-week period from 19th February, 2015, to 25th March, 2015, to make a submission or application to the planning authority in respect of the application aforesaid. Throughout this five-week period, no submission or observation was made by Mr Duffy about the application. Nor was any submission or observation received from anyone else about the planning application.

3 On 7th April, 2015, the Council received a letter dated 2nd April from Mr Duffy. Having regard to the contents of the letter, the Council considered it to be a submission/observation on the planning application and thus received out of time. This being so, the Council returned the letter to Mr Duffy. On 10th April, 2015, the Council decided to grant a conditional planning permission for Scoil Naomh Phádraig's development.

4 On 9th June, 2015, Mr Duffy commenced the within proceedings by which he prays for an order ofcertiorari quashing the Council's decision of 10th April, 2015.

5 At the outset of the hearing for leave, counsel for Scoil Naomh Phádraig contended that there was a significant issue arising as to the timing of the within leave application and that it might make sense to proceed with that aspect of matters first. With the agreement of the parties, the court therefore heard each of them, and Mr Duffy again in reply, as to the issue of the timing of the leave application only. The court then adjourned the proceedings until it returned with its findings on the issue of time. As it happens, the court has...