Duffy v Waterford Corporation

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 21 July 1999
• Neutral Citation: [1999] IEHC 241
• Court: High Court
• Docket Number: No.387 JR/1998
• Date: 21 July 1999

[1999] IEHC 241

THE HIGH COURT

No.387 JR/1998

DUFFY v. WATERFORD CORPORATION

JUDICIAL REVIEW

BETWEEN

MICHAEL DUFFY

APPLICANT

AND

THE MAYOR ALDERMEN AND BURGESSES OF THE CITY OF WATERFORD

RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 PART X

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 134

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(2)

FINN V BRAY URBAN DISTRICT COUNCIL 1969 IR 169

KEOGH V GALWAY CORP 1995 3 IR 457 1995 1 ILRM 141

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 RULE 134(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S20

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22

O'LEARY V DUBLIN CO COUNCIL 1988 IR 150

MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 99

TENNYSON V DUN LAOGHAIRE CORP 1991 2 IR 527

WILKINSON V DUBLIN CO COUNCIL 1991 ILRM 605

FERRIS V DUBLIN CO COUNCIL UNREP SUPREME 7.11.1990 1998/19/7023

ROUGHAN V CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998

Synopsis

Administrative Law

Administrative; judicial review; certiorari; applicant sought order quashing decision of respondent to proceed with a scheme of 70 houses; housing development by corporation- planning authority- exempt from normal planning permission process under section 4 of the Act; however, corporation bound to follow procedure set out in Part X of the 1994 Regulations; corporation published a notice in a local newspaper and invited submissions; at a meeting oral presentations were accepted; in accordance with Regulations the City Engineer provided a report recommending amendments; corporation decided to proceed with scheme as presented in City Engineer's report; whether corporation ought to have re-advertised the scheme as amended and again allow for objections from members of public; whether corporation correctly carried out the statutory procedure laid down by the Regulations; whether proposed scheme in material contravention of the development plan; Local Government (Planning and Development) Act, 1963; Part X of the Local Government (Planning and Development) Regulations 1994 (S.I. No. 86 of 1994).

Held: Relief refused; corporation followed the proper statutory procedures in reaching its decision; proposed development not in material contravention of the development plan.

Duffy v. Waterford Corporation - High Court: McGuinness J. - 21/07/99

Planning

Planning; judicial review; applicant seeks an order of certiorari quashing respondent corporation's decision to build 70 houses in the vicinity of applicant's home; respondent had notified proposed development in local newspaper and had taken written and oral submissions from the public; city engineer had recommended proceeding with development subject to amendments which incorporated many of the objections; respondent had decided to proceed on basis of city engineer's recommendations; whether respondent was obliged to re-advertise amended scheme and again allow for objections of public; whether decision represented a material contravention of the development plan; Part X, Local Government (Planning and Development) Regulations, 1994; section 39(2), Local Government (Planning and Development) Act, 1963.

Held: Relief refused.

Duffy v. Waterford Corporation - High Court: McGuinness J. - 21/07/1999

The statutes and statutory regulations upon which the duties of a planning authority to general public are founded should be interpreted strictly. Judicial interpretation of the procedure and duties relating a Development Plan is not analogous to the situation in Part X of Local Government (Planning and Development) Regulations 1994 (S.I. No. 86 of 1994). The requirements of the planning law must be applied as fully against the local authority as they would against a private developer. In seeking to interpret the objectives set out in a Development Plan the test should be what would a reasonable lay-person understand by the provision in question. “Premature for development” connotes that once “matured”, development will be permitted. Changes to the Development Plan, envisaged in the plan, must be read in the context of the established level of public knowledge. Aspirations expressed in planning authority literature, which do not form an explicit part of the Development Plan, cannot render the proposed development a material contravention of the plan. Similarly, a commitment to a general policy is not the same as to a specific course of action. The High Court so held in refusing the relief sought.

JUDGMENT of

Mrs. Justice McGuinness

1 deliverd the 21st day of July 1999.

2 In the Judicial Review proceedings the Applicant seeks an Order of Certiorari quashing the decision of the Respondent, Waterford Corporation, taken on the 18 th day of June, 1998 to proceed with scheme of 70 houses at Knockhouse Road, Logloss, Gracedieu, Waterford.

3 The Applicant is a retired office worker who resides in a privately owned bungalow at Springmount, Logloss, Gracedieu, in the immediate vicinity of the Respondent's proposed scheme of 70 houses. The Applicant's opposition to the scheme is shared by his three immediate neighbours who also live in privately owned bungalows adjoining that of the Applicant. Objections to the scheme have also been raised by the Hillview Residents' Association. Hillview, a sizeable estate of privately owned dwellings, lies immediately to the south of the Corporation's proposed development.

4 Waterford Corporation's proposal is to build a scheme of local authority houses for rental, or possibly at a later stage, tenant-purchase. The scheme, being housing development by the Corporation which is also the planning authority for Waterford city, was exempt from the normal planning permision process (Section 4 of the Local Goverment (Planning & Development) Act,1963). However, the Corporation was bound to follow the procedure set out in Part X of the Local Goverment (Planning & Development) Regulations 1994 ( S.I. No 86 of 1994). These regulations provide for advertisement and notification of proposed developments by the local authority to the general public and make provision for the receiving of objections by members of the public and consideration of these objections.

5 Its appears that on the 16th February, 1998 at a meeting of Waterford Corporation a decision was taken to embark on the statutory process necessary to build a scheme of local authority houses at Logloss, Gracedieu. There is no doubt that there was a need for increased provision of local authority housing in Waterford; the waiting list for housing was long and few houses had been built in recent years. Funds were avalable to carry out the proposed development. It had become the policy of Waterford Corporation (as is indeed the general policy of local authorities at present) to provide small areas of local authority housing inter-mingled with private housing, rather than, as in the past, creating large homogeneous area of solely local authority housing. On 3rd April, 1998 the Corporation published a Notice in accordance with Part X of the 1994 Regulations in the Waterford News and star, a local newspaper. The Advertisment, which was prominently printed in bold type, was headed " Notice of Proposed Development" and stated that Waterford Corporation proposed to carry out a development consisting of the erection of 79 No. houses together with associated site development works at Logloss, Gracedieu, Waterford. In addition it was set out that

"Plans and particulars of the proposed development will be made avaliable for inspection each day, Monday to Friday, exclusive of public holidays, between the hours of 9.00 am - 12.30 pm - 4.00 pm at the City Engineer's Officers, the Mall, Waterford, during the period from 3rd April, 1998 to 4th May, 1998. Submission or observations with respect to the proposed development, dealing with the proper planning and development of the area in which the proposed development would be situated, may be made in writting to Waterford Corporation on or before 19th May, 1998."

6 On 30th April, 1998 the Applicant, on behalf of himself and a number of other Gracedieu residents, wrote a lengthy and detailed letter to the City Manager, Mr Breen, raising a number of objections to the proposed scheme. Detailed Objections were also lodged by the Hillview Residents' Association and by the Gracedieu Residents' Group. A total of 99 letter of objection were received from individual residents of the Gracedieu and Hillview areas.

7 On 15th May, 1998 a meeting of Waterford Corporation was held which was attended by Councillors and Aldermen and by the Town Clerk, the City Manager, the City Engineer, the Deputy Engineer, the City Architect, the City Planning Officer, the Housing Officer and other officials and by the Applicant and other representatives of the Gracedieu residents and Hillview residents. This meeting, according to Stephen Blair, Senior Executive Planning Officer of the Respondent, was held for the purpose of hearing the objections in detail of the various groups with a view to taking those objections into account in drawing up the finalised plan. It is pointed out by Mr Blair that under Part X of the 1994 Regulations there is no statutory requirement for the Council to meet and accept oral presentations. Nevertheless this was done.

8 In accordance with Regulation 134 of the 1994 Regulations the City Engineer then provided a report which recommended that the Corporation proceed with the proposed development but with certain amendments, including the reduction of the number of houses from 79 to 70. This report was dated 17th June, 1998. A number of suggested amendments were include to meet the objections of...