Flanagan v Galway City and County Manager

JurisdictionIreland
JudgeMr. Justice Blayney
Judgment Date01 January 1990
Neutral Citation1989 WJSC-HC 1496
Docket NumberJ.R. No 316/1988,[1988 No. 316 J.R.]
CourtHigh Court
Date01 January 1990
FLANAGAN v. GALWAY CITY & COUNTY MANAGER
MICHAEL FLANAGAN
APPLICANT

AND

GALWAY CITY AND COUNTY MANAGER AND GALWAY COUNTYCOUNCIL
RESPONDENTS

1989 WJSC-HC 1496

J.R. No 316/1988

THE HIGH COURT

Synopsis:

PLANNING

Permission

Absence - Retention - Application - Refusal by planning authority - Elected members of local authority directed county manager to grant retention permission - Extraneous matters taken into account - Members" resolution invalid - The applicant's application was refused by the county manager, who discharges the executive functions of the respondent planning authority - The elected members of the respondent planning authority held a meeting and resolved that the county manager be directed to grant the application - Held that the elected members of the respondent local authority, in considering the motion, were restricted to a consideration of the proper planning and development of the relevant planning area, as required by s. 26, sub-s. 1, of the Act of 1963, and were bound to disregard all irrelevant and illegitimate factors: ~P. & F. Sharpe Ltd. v. Dublin City and County Manager~ (Supreme Court - 14/12/88) applied - Held that such members had taken into account extraneous factors and that the said resolution was invalid - City and County Management (Amendment) Act, 1955, s. 4 - Local Government (Planning & Development) Act, 1963, ss. 26, 77 - (1988/316 JR - Blayney J. - 25/5/89) - [1990] 2 I.R. 66

|Flanagan v. Galway City and County Manager|

LOCAL AUTHORITY

Statute

Powers - Exercise - Validity - Planning authority - Refusal of retention permission - Resolution directing county manager to grant permission - Extraneous matters taken into consideration - Resolution invalid - (1988/316 JR - Blayney J. - 25/5/89)

|Flanagan v. Galway City and County Manager|

STATUTORY INTERPRETATION

Powers

Exercise - Validity - Local authority - Planning code - Refusal of retention permission - Resolution directing county manager to grant permission - Extraneous matters taken into consideration - Resolution invalid - (1988/316 JR - Blayney J. - 25/5/89)

|Flanagan v. Galway City and County Manager|

Citations:

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 ILRM 565, 1989 IR 701

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S77(2)(a)

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1987 ILRM 202, 1986 IR 642

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

1

Judgment of Mr. Justice Blayneydelivered the 25TH day of May 1989.

2

This application for Judicial Review is concerned with a single issue - namely the validity of a resolution passed by the County Council for the County of Galway (to which I shall refer hereinafter as the County Council) on the 29th July 1988 under Section 4 of the City and County Management (Amendment) Act 1955(to which I shall refer to as the 1955 Act) whereby they directed the County Manager to grant planning permission to the Applicant for the retention of a store at Ballycleara, Kinvara, Co. Galway, as a commercial store.

3

The Deputy County Manager, who was acting for the County Manager during the latter's temporary absence on leave, having consulted the County Council's Law Agent, came to the conclusion that the resolution was invalid and refused toimplement it. The Applicant seeks an Order of Certiorari quashing his decision and an Order of Mandamus directing the County Manager to implement the resolution. It is common case that if the resolution is valid the County Manager is obliged to comply with it. It is the Applicant's contention that it is valid and that accordingly he is entitled to the relief which he is seeking.

THE FACTS
4

The following facts, which were not disputed by the Applicant, are taken from the report of Mr. Patrick Blighe, an Executive Engineer in the Planning and Development Section of the County Council. A copy of this report was furnished to all the members of the County Council before the meeting of the 29th July 1988 at which the Section 4 resolution waspassed.

"Proposed development: Retention of existing store as a commercialstore."

5

Townland: Ballyclery townland.

6

Applicant: Mr. Michael Flanagan.

7

Planning Ref: No. 55841.

8

Location: The site is located on the N67 national secondary road approximately one and a half miles north of Kinvara.

9

Planning History: Planning Ref. No. 26171: Outline Planning Permission granted to Mr. Patrick Flanagan in January 1978 for the erection of a dwelling-house on a larger site incorporating the site of the present application. The outline permission was granted on the basis of an essential housing need claim.

10

Planning Ref. No. 27488: Approval Grant to Mr. Patrick Flanagan for the erection of a dwelling-house in May 1978. This house is occupied by the present Applicant, Mr. Michael Flanagan. Planning Ref. No. 44340: Planning Permission granted to Mr. Michael Flanagan Junior in January 1983 for the erection of a garage subject to the use being restricted to non commercial purposes. This garage has now been converted without permission into a self contained living unit. Planning Ref. No. 53541: Planning Permission refused to Mr. Michael Flanagan on March 26th 1987 for the retention of a fuel and animal feed store. This planning application was the subject of a resolution under Section 4 of the 1955 Act which was passed by a County Council meeting on the 13th March 1987. After considering legal advice the County Manager decided to refuse permission on the grounds that the development constituted a traffic hazard and was in contravention of the County Development Plan. An Appeal was lodged with An Bord Pleanala. By decision dated 31st August 1987, An Bord Pleanala refused permission."

11

Mr. Blighe then went on in his report to set out what in his view were the planning considerations:-

"The current application refers to the same development for which permission has been refused under Planning Ref. No. 53541. The development is located on a narrow, substandard section of the national secondary route at a point where the maximum speed limit applies. Theproposedcontinuance of use of the development for commercial purposes would create a traffic hazard and would be contrary to the provisions of the County Development Plan which seeks to restrict all frontage development along national routes so as to minimal the accident risk and protect the traffic capacity and status as inter urban routes."

12

Finally he set out his recommendation:-

"Refusal is recommended for the following reasons:-

1. The proposed development would constitute a traffic hazard because it would be located on a narrow unre-al igned section of the national secondary route at a point where the maximum speed limit applies and the traffic generated by the development would interfere with the safety and freeflow of traffic along this route.

2. The proposed development would contravene Chapter 25, Table 25 B which seeks to restrict development along this route in the interest of traffic safety."

13

In the minutes of the meeting of the 29th July 1988 it is stated that the Deputy County Manager submitted Mr. Blighe's report to the meeting and the report is...

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