Freeney v Bray U.D.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Hanlon
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 904
• Court: High Court
• Docket Number: No. 2533P/1981
• Date: 01 January 1982

FREENEY v. BRAY U.D.C.

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)ACTS, 1963AND 1976

AND IN THE MATTER OF THE HOUSING ACT, 1969

BETWEEN/

MYLES JOSEPH FREENEY

Plaintiff

and

THE BRAY URBAN DISTRICT COUNCIL

Defendant

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNINGAND DEVELOPMENT) ACT 1976

AND IN THE MATTER OF AN APPLICATION BY BRAY URBAN DISTRICT COUNCIL

BETWEEN

BRAY URBAN DISTRICT COUNCIL

Applicant

and

MYLES JOSEPH FREENEY

Respondent

1982 WJSC-HC 904

No. 2533P/1981

No. 8MCA/1981

THE HIGH COURT

1 Judgment of Mr. Justice O'Hanlondelivered the 16th July, 1981

2 These two sets of proceedings were heard together on the 3rd July, 1981 In the first action the Plaintiff, Myles Joseph Freeney claims a declaration against Bray Urban District Council that in the events which have happened a decision of the said Defendant to grant a Planning Permission sought by the Plaintiff by way of an application, referencenumber in Planning Register, 1443, is deemed under and by virtue of the provisions of Part IV of the Local Government (Planning and Development) Act, 1963, and particularly section 26 thereof (as amended by Section 10 of the Housing Act, 1964) to have been given on the 23rd day of September, 1979.

3 A further declaration is sought, that the purported notification of decision to refuse to grant the permission under Section 26 of the said Act of 1963, "posted on the 25th day of September, 1979" by and on behalf of the Defendant is null and void and of no effect, and - if necessary - an Order directing the Defendant as Planning Authority, to grant the Planning Permission so sought by the Plaintiff.

4 The Plenary Summons in this case was not issued until the 9th March, 1981. In the second set of proceedings, Bray Urban District Council are moving under the provisions of Section 27 of the Local Government (Planning and Development) Act, 1976, for an Order, (1) Directing the Respondent, Myles Joseph Freeney, to remove a temporary structure situate at the front of premises known as Star Amusements, Strand Road, Bray, Co. Wicklow; (2) Directing him to discontinue the use of the portion of the premises now covered by the said structure as part of an Amusement Hall or Fun-Fair; and (3) Restraining him from carryingout any unauthorised development on the lands owned by him at Strand Road, Bray, Co. Wicklow, and known as Star Amusements.

5 The Plaintiff in the proceedings brought by way of Plenary Summons, describes himself as an Amusement Arcade Proprietor, and over a period of many years he has put before Bray Urban District Council a series of applications for planning permission in relation to developments proposed to be carried out by him at his premises at Strand Road, Bray. The latest in this series of applications was submitted on his behalf on or about the 6th October, 1978, and as the proposed development would have entailed the demolition of an existing habitable house, it was necessary to submit to the Urban District Council a separate application under the provisions of the Housing Act 1969section 3, for permission to demolish.

6 This brought into play the provisions of Section 10 of the Housing Act, 1969, whereby the application for planning permission was to be postponed until the application under the Act of 1969 for permission to demolish had been fully determined. It also meant that by the combined effect of Section 26 (4) of the Act of 1963 and Section 10 of the Act of 1969, the planning authority were required to make and give notice of their decision in relation to the planning application withina period of five weeks from the date of final determination of the application for permission to demolish. In the events which happened in the present case that date is agreed as the 20th August, 1979, being the date on which the Minister for the Environment granted the necessary permission on an appeal to him, in accordance with section 4 (6)(b) of the Act of 1969.

7 The Plaintiff contends that the Urban District Council in it capacity as Planning Authority for the area to which his application related, failed to give a decision in relation to the planning application within the statutory period of five weeks beginning on the day on which the said appeal under the Housing Act, 1969, was determined by the Minister, and accordingly that it should be regarded as having given a decision to grant the planning permission sought on the last day of that five-week period. This result would follow from the provisions of section 26 (4) (a)(b) of the Act of 1963, as amended by section 10 of the Housing Act, 1969, if the planning authority did, in fact, fail to give notice of their decision to the applicant within the said appropriate period of fiveweeks.

8 The Defendant, however, says that a decision was made on the 24th September, 1979, to refuse the permission sought by thePlaintiff, and that notice of the said decision was given to the Plaintiff on that date by posting it to him in a registered packet handed in to Bray Post Office at approximately 4.55 p.m. in the afternoon of the same day. The facts surrounding this transaction are not in dispute and may be stated briefly. A prominent notice exhibited in the post office in the Main Street, Bray, gave the "Hours of Business" a 9.0 a.m. to 1.0 p.m. and 2 p.m. to 5.30 p.m.; "Latest Times for Posting For Despatch To ... All Parts... Registration - To be handed in at the counter ... 4.30 p.m." If a registered packet was handed in after 4.30 p.m. but before 5.30 p.m. it would be accepted but would not go out until the following morning.

9 An official of Bray Urban District Council handed in a registered letter to the post office addressed to the Plaintiff and containing notice of the decision to refuse permission, at about 4.55 p.m. on the 24th September, 1979. The letter was properly stamped and was accepted by the person on duty in the post office, but the official did not wait for a receipt. She returned the following morning and was given a receipt dated 25th September, 1979. On returning to the offices of the Council, this was noticed; application was made to the Head-Postmaster for a new date stamp on the receipt and the receipt was then re-dated as of the 24th September, 1979. The sub-postmaster said in evidence that the packet would have been delivered in ordinary course of post in theafternoon of 25th September, 1979.

10 It appears to me that the issues which arise for determination between the Plaintiff and the Defendant can be resolved by considering what answers should be given to the following series of questions:-

11 1. Is the day upon which the Minister's decision was given on the appeal under the Housing Act, 1969, to be taken into account in calculating the "appropriate period" of five weeks within which a decision should have been given on the planning application?

12 2. If it is, and the five-week period expired on the 23rd September, 1979 is the situation affected by reason of the fact that that date fell on a Sunday?

13 3. If the 24th September, 1979, is to be regarded as the last day of the statutory five-week period, was notice "given" within the meaning of the Acts, when the registered packet was handed in to the post office on that date and accepted for posting by the person incharge?

14 4. If the notice was not given within the requisite five-week period, is it now open to the Plaintiff to challenge the validity of the decision to refuse permission, having regard to the time limit for bringing proceedings imposed as a result of the amendment of section82 of the Local Government (Planning and Development) Act, 1963, effected by section 42 of the amending Act of 1976 (No. 20 of1976)?

15 First, in relation to the computation of the five-week period, I accept the submission made on behalf of the Plaintiff that the provisions of the Interpretation Act, 1937, (No. 38 of 1937), sec. 11, apply in the circumstances of the present case. It reads (so far as relevant) as follows:

"11. The following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say:-.....

(h) Periods of Time. Where a period of time is expressed to begin on, or be reckoned from, a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period."

16 The application of this rule (which, incidentally, appears to represent a departure from the traditional common law rule relating to the same topic), produces the consequence that the 20th August, 1979, being the day on which the Minister made his decision, is to be included in the computation of the five-week period, and accordingly, the last day of the period was the 23rd September, 1979. The decision to refusepermission was not made until the following day, 24th September,1979.

17 This initial finding makes it necessary to consider the second question i.e. whether the Defendant is entitled to claim an extra day by reason of the fact that the 23rd September, 1979, fell on a Sunday. Mr. Smyth, for the Urban District Council, referred to statutory provisions dating back to the Commissioners Clauses Act, 1847, (10 & 11 Vict. c. 16), in support of his contention that local authorities are precluded from carrying out their statutory functions on Sundays. (See sec. 54 of that Act, and also The Local Government (Application of Enactments) Order, 1898, Schedule, Par. 2).

18 As the statutory provisions indicate an intention that local authorities are not to carry out their functions on Sundays, it was argued that the planning authority in the present case should not be regarded as having given a decision...