Flynn v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 47
• Docket Number: [1966 No. 51 JR],No. 51 J.R./1996
• Court: High Court
• Date: 01 January 1997

FLYNN & O'FLAHERTY PROPERTIES LTD v. DUBLIN CORPORATION

JUDICIAL REVIEW

FLYNN AND O'FLAHERTY PROPERTIES LIMITED

APPLICANT

AND

THE LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN

RESPONDENT

[1996] IEHC 47

No. 51 J.R./1996

THE HIGH COURT

Synopsis:

PLANNING

Planning application - decision refusing permission not communicated to applicant within prescribed time - whether default permission should be granted - whether application entitled to more than one extension of time for application under s.26(4A) Local Government (Planning and Development)Act, 1963 - exercise of discretion of judge in granting default permission - Held: De fault permission granted - applicant entitled to more than one extension of time - (High Court: Kelly J. - 19/12/1996)

|Flynn & O'Flaherty Properties Ltd. v. Dublin Corporation|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(b)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(b)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S39(f)

FREENEY V BRAY UDC 1982 ILRM 29

MOLLOY & ANOR V DUBLIN CO COUNCIL 1991 IR 90

CREEDON V DUBLIN CORPORATION 1984 IR 428

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1993

1 Judgment of Mr. Justice Kelly delivered the 19th day of December, 1996 .

BACKGROUND

2 On the 28th July, 1995 the Applicant submitted a Planning Application to the Respondent. It sought planning permission for five single storey houses at The Crescent, Beaumont Road, Dublin 9.

3 The application had been preceded by discussions concerning it which had taken place between representatives of the Applicant and the Respondent. The background to those discussions was as follows.

4 The Applicant had completed a development at Beaumont Road, known as Collinswood. A pedestrian route existed from that development to Beaumont Road and on it was a strip of open space. Local residents had become concerned at the misuse of that open space by vandals and youths who conducted cider parties on it. It was felt that the construction of additional houses on the strip of open space would improve the situation. Hence the application which was made on the 28th July, 1995.

THE APPLICATION

5 Once made, the application fell to be dealt with in accordance with the relevant statutory provisions and the regulations in force. Included amongst those statutory provisions was Section 26(4)(a) of The Local Government (Planning and Development) Acts, 1963to 1993. That subsection provides as follows:-

" Where -

(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,

(ii) any requirements relating to the application of or made under such regulations are complied with, and

(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,

a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period."

6 The expression " the appropriate period" which occurs in the subsection which I have just quoted is defined by subsection (b) of the same Section 26(4). In so far as it is relevant to this application, the definition is as follows:-

" (b) In paragraph (a) of this subsection the "appropriate period" means -"

7 (iii) "...within the period of two months beginning on the day of receipt, by the planning authority of the application."

8 Neither of the circumstances which are dealt with in subparagraphs (i) or (ii) of subsection (b) are relevant to this application.

9 Needless to say, if the statutory provisions which I have just quoted were the only ones applicable, it would mean that a decision on the Applicant's application would have had to have been made and notice of it given by 28th September, 1995. If not, the planning authority would be deemed to have granted permission on the last day of that period. In common parlance, such a permission is known as a "default permission" and that is the term which I propose to use to describe such a permission in the remainder of this judgment.

10 The two month period is not, however, fixed in an absolute fashion because of the provisions of Section 26(4A). That subsection provides as follows:-

" If, but only if, before the expiration of the appropriate period within the meaning of subsection (4)(a) of this section the applicant for a permission under this section gives to the planning authority in writing his consent to the extension by them of that period, the planning authority may extend the period and in case, pursuant to the foregoing, a planning authority make an extension, subsection (4)(b) of this section shall, as regards the particular case to which the extension relates, be construed and have effect in the accordance with the extension."

11 In the present case the Applicant sought four separate extensions of time in respect of its application to the Respondent. Each such application was couched in precisely the same terms. It consisted of a single sentence letter which read:-

" We request on behalf of our client, an extension of time up to the [relevant date] for consideration of the above application."

12 The last such application sought an extension of time up to the 15th December, 1995 for consideration of the application.

13 Each application for an extension was granted by the Respondent. Each Order extending the time was in the same terms. So were the notifications issued by the Respondent to the Application concerning such extensions. It is only necessary to quote from the last of these which is dated the 23rd November, 1995. It reads as follows:-

" Dear Sir/Madam,"

14 I am directed by the Assistant City Manager to inform you, that in accordance with Section 39(f) of The Local Government (Planning and Development) Act, 1976amending Section 26(4) of The Local Government (Planning and Development) Act, 1963, the Planning Authority has extended until the 15/12/95 the period for making a decision on this application.

15 Signed [on behalf of the Corporation of Dublin]

16 Olive Flanagan for Assistant City Manager Date 23rd November, 1995."

17 It is accepted that the reference in these notifications to Section 39(f) of The Local Government (Planning and Development) Act, 1976was an error and the appropriate statutory provision which should have be cited was Section 26(4A). Nothing turns on this point.

18 On the 14th December, 1995 the Respondent decided to refuse the planning permission sought by the Applicant.

19 On the following day the 15th December, 1995 notification of the decision was sent to the Applicant's architects by registered post. The choice by the Respondent of this method of communication of their refusal ensured that notice of the decision could not be received by the Applicant prior to the 16th December, 1995. It is common case that it was not in fact received until the 18th December, 1995 which was a Monday.

20 In these circumstances the Applicant contends that it is entitled to a default permission because the planning authority did not give notice to it within the appropriate period.

THE GIVING OF NOTICE

21 On the assumption that the 15th December, 1995 was the end of the appropriate period then it appears to me that by choosing the method of communication which it did the Respondent effectively ensured that its decision of the previous day would not be communicated to the Applicant within the prescribed time.

22 It is the date of communication of the Respondent's decision and not the date of the actual decision which is crucial to the Applicant's case.

23 In Freeney -v- Bray U.D.C. (1982) ILRM 29O'Hanlon J. said that he was of opinion that there was an intention on the part of the legislature:-

" that planning applications were to be dealt with as matters of some urgency and that there was an oblication on the planning authorities to communicate their decisions to applicants within a strict limit of time; and further that it was intended that notice of decisions should reach applicants either personally or at their premises within the period described by the Act as "the appropriate period.""

24 He went on to say:-

" The Interpretation Act, 1937, Section 18, is in ease of the sender of such statutory notice, since it raises a presumption in his favour that the notice has reached the applicant at the time when it would have been delivered to him in due course of post. The onus is thereby shifted to an applicant who asserts that the notice was not given by the planning authority within the statutory period, but if the service was by registered post...