Flynn Machine & Crane Hire Ltd v Wicklow County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice O'Keeffe
Judgment Date28 May 2009
Neutral Citation[2009] IEHC 285

[2009] IEHC 285

THE HIGH COURT

[No. 467 J.R./2006]
Flynn Machine & Crane Hire Ltd v Wicklow CO Council
JUDICIAL REVIEW

BETWEEN

FLYNN MACHINE & CRANE HIRE LIMITED
APPLICANT

AND

WICKLOW COUNTY COUNCIL
RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S153(3)

PLANNING & DEVELOPMENT ACT 2000 S154(3)

PLANNING & DEVELOPMENT ACT 2000 S154(5)

PLANNING & DEVELOPMENT ACT 2000 S157(4)(A)(I)

PLANNING & DEVELOPMENT ACT 2000 S154(4)

PLANNING & DEVELOPMENT ACT 2000 S154(3)(A)

PLANNING & DEVELOPMENT ACT 2000 S154(3)(A)I(D)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S31

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(1)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S154

PLANNING & DEVELOPMENT ACT 2000 S152

PLANNING & DEVELOPMENT ACT 2000 S3

PLANNING & DEVELOPMENT ACT 2000 S153

GALWAY CO COUNCIL v DAVOREN UNREP QUIRKE 9.1.2005

MYNORS ON PRACTICAL PLANNING AN ENFORCEMENT 71

PLANNING & DEV ACT 2000 S154(5)(B)

DUNDALK TOWN COUNCIL v LAWLOR 2005 2 ILRM 106 2005 17 3524 2005 IEHC 73

LYONS v WEST BERKSHIRE DISTRICT COUNCIL 2003 JPL 1137

O'KEEFE v BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE v STARDUST COMPENSATION TRIBUNAL 1986 IR 642

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & ANOR 1997 2 IR 489

PLANNING & DEVELOPMENT ACT 2000 S154(8)

PLANNING & DEVELOPMENT ACT 2000 S157(4)(C)

STANLEY v GARDA SIOCHANA COMPLAINTS BOARD 2000 2 ILRM 121

PLANNING & DEVELOPMENT ACT 2000 S153(1)

DE SMITH WOOLF & JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 5ED PAR 6-101 -6-102 P355-357

PLANNING & DEVELOPMENT ACT 2000 S153(5)

MONAGHAN CO COUNCIL v BROGAN 1987 IR 333

DUNDALK TOWN COUNCIL v LAWLOR 2005 2 ILRM 106 2005 17 3524 2005 IEHC 73

PLANNING & DEVELOPMENT ACT 2000 152(4)(C)

DE BLACAM JUDICIAL REVIEW 2ED PAR 7.13

BORD NA MONA v BORD PLEANALA 1985 IR 205

PLANNING & ENVIRONMENTAL LAW

Enforcement notice

Validity of notice - Severance - User - Intensification - Change of use - Date of service of notice - Compliance date - Whether notice ultra vires respondent - Whether statutory requirement to set out investigation made prior to issuing notice - Whether requirement to state that respondent had considered matters outlined in statute - Whether notice went beyond requiring alleged unauthorised development to cease - Whether respondent acted capriciously - Whether failure to identify site with sufficient precision - Whether subdivision of site constituted intensification - Whether failure to specify period for compliance - Whether necessary to show respondent had not acted bona fide or had taken into account irrelevant considerations - Dundalk Town Council v Lawlor [2005] 2 ILRM 106, Bord na Mona v An Bord Pleanala [1985] IR 205 and O'Keeffe v An Bord Pleanala [1993] 1 IR 39 applied; Galway Council v Davoren (Unapproved, Quirke J, 2005), (R) Lyons v West Berkshire District Council [2003] JPL 1137, State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, McCormack v Garda Siochána Complaints Board [1997] 2 IR 487, Monaghan County Council v Brogan [1987] IR 333 and Stanley v Garda Siochána Complaints Board [2000] 2 ILRM 121 considered - Planning and Development Act 2000 (No 30), ss 3, 152, 154 and 157 - Local Government (Planning and Development) Act 1963 (No 28) - Order severing part of enforcement notice granted (2006/467JR - O'Keeffe J - 28/5/2009) [2009] IEHC 285

Flynn Machine & Crane Hire Limited v Wicklow County Council

Facts: The applicants sought leave to quash the decision of the respondent made by Managers Order to issue an Enforcement Notice and a declaration that the Order and Notice were ultra vires. The Notice was served pursuant to s. 154 Planning and Development Act 2000. It was alleged that the decision had failed to set out the investigation of the respondent to make the decision. The applicant also alleged inter alia that the decision was ultra vires in that it wrongfully required the applicant to desist from the usage of the site for "any other commercial operation" without the prior benefit of planning permission, which had not been complained of in the warning letter.

Held by O' Keefe J. That the decision made by the Manager's order was not ultra vires and void in that there was no requirement in statute to set out the investigation. The decision recorded with sufficient particularity the alleged unauthorised development. The respondent was entitled to make the decision to issue the Enforcement Notice and the Notice was not ultra vires. An order for severance would apply as to a particular section of the contents of the Enforcement Notice, referring to "any other commercial operation."

Reporter: .E.F

1

JUDGMENT delivered by Mr. Justice O'Keeffe on 28day of May 2009

2

1. On 24 th April, 2006 leave to apply for judicial review for the following reliefs was granted to the Applicant herein:-

3

(i) An order of certiorari to quash the Respondent's decision made by Manager's Order dated 8 th February, 2006 to issue an Enforcement Notice.

4

(ii) An order of certiorari to quash the Respondent's Enforcement Notice dated 8 th February, 2006.

5

(iii) A declaration that the Respondent's Manager's Order and/or Enforcement Notice dated 8 th February, 2006 are/is ultra vires and void.

6

(iv) An order of prohibition prohibiting the Respondent from taking any steps and/or commencing any criminal proceedings in pursuance of the Enforcement Notion dated 8 th February, 2006 and/or if necessary a stay on such criminal proceedings.

7

(v) Further or in the alternative an injunction restraining the Respondent from taking any further steps and/or commencing any criminal proceedings on foot of the said Enforcement Notice dated 8 th February, 2006.

8

The grounds on which relief was sought are:-

9

(i) Certiorari by way of an application for judicial review to quash the Respondent's decision made by Manager's Order dated 8 th February, 2006 to issue an Enforcement Notice of the same date.

10

1. The Respondent is the planning authority for the County of Wicklow in which capacity it made a decision by Manager's Order dated 8 th February, 2006 to issue an Enforcement Notice of the same date pursuant to Part VIII of the Planning and Development Act 2000, as amended ("the 2000 Act").

11

2. The said decision is ultra vires and void in that it fails to set out the investigation, if any, made by the Respondents so as to enable it to make the decision

12

...

13

4. The said decision is ultra vires and void in that it fails to state that prior to making this decision, the Respondent considered the matters set out in section 153(3) of the 2000 Act in terms of the representations made to it, submissions or observations made and any other material considerations including the "sustainable" development of the area. [This ground was abandoned and not pursued at the hearing.]

14

5. The said decision is ultra vires and void in that at paragraph 3 it orders that the Enforcement Notice be served on the Applicant wrongfully requiring the Applicant to desist from the usage of the site "for any other commercial operation without the prior benefit of planning permission", thus disregarding the established non-conforming business user thereof which the Respondent had previously acknowledged in its decision to grant permission for a bungalow at Crosscoolharbour, Blessington dated 13 th March, 1990 per Planning Register Number: 89/005054.

15

6. The said decision is ultra vires and void insofar as it orders that the Enforcement Notice be served on the Applicant, but not the person carrying out the development fails to comply with section 154(3) of the 2000 Act in that at paragraph 4 thereof it requires the demolition of a wall located outside the Applicant's property and the removal of the resultant rubble from the site which wall was neither developed nor owned by the Applicant.

16

7. The said decision is ultra vires and void insofar as it orders that the Enforcement Notice be served on the Applicant by requiring the Applicant to desist from any other commercial operation it purports to go beyond requiring the alleged unauthorised development to cease.

17

8. The said decision is ultra vires and void in that it fails to contain the mandatory provisions set out in section 154(5) of the 2000 Act [This ground was abandoned at the hearing.]

18

9. The said decision is ultra vires and void in that it fails to set out the reasons for the Respondent's decision to issue the Enforcement Notice and/or direct their entry in the register.

19

10. The said decision is ultra vires and void in that it fails to identify with proper particularity or at all the alleged unauthorised development and/or the land concerned.

20

...

21

12. The said decision is ultra vires and void in that the Respondent acted capriciously and without reasonable justification in issuing same.

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13. The said decision is ultra vires and void in that it fails to set out that the Respondent considered the matters set out in section 157(4)(a)(i) of the Act.

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(ii) Certiorari to quash the Respondent's Enforcement Notice dated 8 th February, 2006 on the grounds

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1. The Enforcement Notice is ultra vires and void in that Manager's Order sanctioning the issue thereof is ultra vires and void.

25

...

26

3. The said Enforcement Notice is ultra vires and void in that it fails to provide that it takes effect on the date of the service thereof as required by section 154(4) of the 2000 Act and/or to require the steps specified therein to be completed within six weeks of the date of service as required by the said Manager's Order.

27

4. The said Enforcement Notice is ultra vires and void in that it fails to refer to and/or to properly identify the land concerned.

28

5. The said Enforcement Notice is ultra vires and void in that it fails to comply with a mandatory provision set out at section 154(5) of the 2000...

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1 cases
  • O'Neill v Kerry County Council
    • Ireland
    • High Court
    • 21 December 2015
    ...enforcement notice are taken as expeditiously as possible’. 18 O'Keefe J. in Flynn Machine and Crane Hire Ltd. v. Wicklow County Council [2009] IEHC 285 held that there was no obligation on a council to set out particulars of its investigation leading to the issue of an enforcement notice (......

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