Dunne Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 17 July 1974
• Date: 17 July 1974
• Docket Number: [1970. No. 197 P]
• Court: High Court

[1970. No. 197 P]

Dunne Ltd. v. Dublin County Council

FRANK DUNNE LIMITED

Plaintiff

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Defendant.

Local Government - Planning - Permission - No decision on application within appropriate period - Permission regulations - Whether requirements directory or obligatory - Local Government (Planning and Development) Act, 1963 (Permission) Regulations, 1964 (S.I. No. 221), Arts. 3(a), 8(1), 9(4) - Local Government (Planning and Development) Act, 1963 (No. 28),s. 26, sub-s. 4.

Plenary Summons.

The facts have been summarised in the head-note and they appear in the judgment of Pringle J., post. By s. 26, sub-s. 4 (b) (iii), of the Act of 1963 the "appropriate period" is stated to be "within the period of two months beginning on the day of receipt by the planning authority of the application."

Article 3 of the Local Government (Planning and Development) Act, 1963 (Permission) Regulations, 1964, provides:—

"3. An application to a planning authority for a permission for the development of land or for an approval or for a permission for the retention of a structure shall be accompanied by—

• (a) particulars of the interest held in the land or structure by the applicant, the name and address of the applicant, and

• (b) a copy of a newspaper circulating in the area in which the land or structure is situate in which there has been published a notice in pursuance of article 9 of these Regulations, or

• (c) a copy of the notice erected or fixed on the land or structure in pursuance of article 9 of these Regulations."

Article 4, sub-article (1), of those Regulations states:—

"(1) An application to a planning authority for a permission for any development consisting of or mainly consisting of the carrying out of works on, in or under land or for the retention of a structure shall in addition to the matters prescribed in article 3 of these Regulations, be accompanied by such plans (including a site or layout plan and drawings of floor plans, elevations and sections) and such other particulars as are necessary to identify the land and to describe the works or structure to which the application relates."

Article 8, sub-article (1) (c) and (d), of those Regulations provides:—

"8. (1) Plans, drawings and maps accompanying an application for a permission or an approval shall be in duplicate and shall comply with the following requirements:—

• (c) plans of drawings of elevations and sections shall be drawn to scale and the scale shall be indicated thereon,

• (d) the north point shall be indicated on all maps and plans other than drawings of elevations and sections."

The defendants were the planning authority for the area in which the plaintiffs' lands were situate. The plaintiffs applied to the defendants for permission to develop the plaintiffs' lands by building thereon ten dwellinghouses. The plaintiffs contended that the defendants had failed to give notice of their decision within the appropriate period and that a decision to grant the permission must be regarded as having been given on the last day of that period in accordance with the provisions of the Local Government (Planning and Development) Act, 1963. The defendants contended that this was not so as the application had not been made in accordance with the relevant permission regulations. After the appropriate period had expired the defendants purported to grant permission subject to certain conditions. The plaintiffs sued the defendants in the High Court and claimed certain declarations, and damages.

Held by Pringle J., in giving judgment for the plaintiffs, 1, that the defendants had not given notice of their decision to the plaintiffs within the appropriate period and that, accordingly, a decision to giant the permission must be deemed to have been given as provided by s. 26, sub-s. 4 (a), of the Act of 1963.

2. That the failure to state in the application particulars of the plaintiffs' interest in the land, the imperfections in the newspaper notice of the application and the fact that such notice described the applicant as "F. Dunne", and the absence from the plans accompanying the application of the scale employed and the north point, were all failures to observe directory requirements of the relevant regulations as distinct from obligatory requirements.

3. That the plaintiffs were entitled to the declarations sought by them but they were not entitled to damages as the permission of the defendants could have been quashed on certiorari.

Cur. adv. vult.

Pringle J. :—

The plaintiffs in this action make two alternative claims. In the first place, they seek declarations (1) that on the 8th August, 1969, they made an application to the defendants for planning permission under the Local Government (Planning and Development) Act, 1963, to build ten houses on lands...