Frenchurch Properties Ltd v Wexford County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Lynch
Judgment Date01 January 1992
Neutral Citation1991 WJSC-HC 1984
Docket NumberNo. 266/990,[1990 No. 266 J.R.]
Date01 January 1992
FRENCHURCH PROPERTIES LTD v. WEXFORD CO COUNCIL
Judicial Review

BETWEEN

FRENCHURCH PROPERTIES LIMITED
APPLICANT

AND

WEXFORD COUNTY COUNCIL
RESPONDENT

1991 WJSC-HC 1984

No. 266/990

THE HIGH COURT

Synopsis:

PLANNING

Development

Permission - Duration - Extension - Prerequisite - Completion of substantial works - Proposed apartment blocks - Foundation piles completed and floor-slab material on site - Extension refused - Refusal based on misinterpretation of statute - Natural justice - Obligation of planning authority to communicate with applicant developer - Local Government (Planning & Development) Act, 1982, s. 4 - (1990/266 JR - Lynch J. - 12/4/91) - [1992] 2 I.R. 268

|Frenchurch Properties Ltd. v. Wexford County Council|

NATURAL JUSTICE

Fair procedures

Application - Determination - Consultation - Necessity - Planning authority - Extension of period of planning permission - Refusal - Misinterpretation of enactment - (1990/266 JR - Lynch J. - 12/4/91) - [1992] 2 I.R. 268 - [1991] ILRM 769

|Frenchurch Properties Ltd. v. Wexford County Council|

WORDS AND PHRASES

"Substantial works"

Development — Permission - Duration - Expiration - Extension sought - Extension refused - Natural justice - Refusal on ground that substantial works not completed within period of permission - (1990/266 JR - Lynch J. - 12/4/91) [1992] 2 I.R. 268 1991 ILRM 769

|Frenchurch Properties Ltd. v. Wexford County Council|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(c)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S14(1)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(iii)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS V AG 1970 IR 317

DOUPE V LIMERICK CO COUNCIL & ANOR 1981 ILRM 456

LYNCH, STATE V COONEY 1982 IR 337

KEEGAN, STATE V STARDUST TRIBUNAL 1986 IR 642

CREEDON, STATE V CRIMINAL INJURIES TRIBUNAL 1988 IR 51

HILL V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1990 ILRM 36

O'KEEFFE V BORD PLEANALA & ORS UNREP SUPREME 14.2.91

MCCOY,STATE V DUN LAOGHAIRE CORP UNREP GANNON 1.6.84 1985/9/2447

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

DONNELLY, STATE V MIN FOR DEFENCE UNREP FINLAY 8.10.79 1979/9/1564

MCGRATH & O'ROURKE V TRUSTEES OF MAYNOOTH COLLEGE 1979 ILRM 165

O'BRIEN V BORD NA MONA 1983 IR 255

1

Judgment of Mr. Justice Lynchdelivered the 12th day of April 1991

2

This is an application by way of Judicial Review for an Order of Certiorari to quash a decision of the Respondent made on the 29th of May 1990 as planning authority for the County of Wexford refusing an extension pursuant to Section 4 of the Local Government (Planning and Development) Act 1982of the period of operation of a planning permission which expired on the 8th of April 1990 and for an Order of Mandamus directing the Respondent to furnish to the Applicant its reasons for that decision.

THE FACTS
3

The Applicants are a property development company withregistered offices at No. 1 Temple Road, Blackrock in the County of Dublin. The Applicants have two Directors namely Mr. John J. Murphy of Coolballow, County Wexford and Mr. David Fitzpatrick of No. 1 Temple Road aforesaid. On the 29th of June 1989 the Applicants contracted to purchase property comprising and adjoining the abutment of the old Wexford bridge in the townland of Crosstown and County of Wexford with the benefit of a planning permission granted on the 9th of April 1985 for two blocks of apartments each block to be two storeys high and each block to contain seven units.

4

The sale was not completed until the 31st of December 1989. No works had been carried out pursuant to the planning permission by the predecessors in title of the Applicants and the five year period of operation of the planning permission would expire at midnight on Sunday the 8th of April 1990. The Applicants purchased the said property with a view to carrying out the development authorised by the said planning permission but they were aware that it would not be possible to complete the development before the expiration of the planning permission. The Applicants accordingly set about commencing the said development as soon as possible after completion of the said purchase in order to have carried out sufficient works before the expiration of the said planning permission to entitle them to an extension of the period for completion of the development authorised thereby pursuant to Section 4 of the 1982Act.

5

There were unusual features to the development. The site adjoined the River Slaney and in order to get secure foundations piling was necessary. In January 1990 the Applicants engaged Eolas to advise as to the pilingrequirements of the site and Eolas issued their report dated the 31st of January 1990. In early January 1990 the Applicants also engaged a consulting engineer and an architect and in late January 1990 the Applicants engaged a specialist firm to carry out the required pile driving at an agreed price of £38,500.

6

On the 10th of February 1990 the Applicants contracted with a construction company to do all necessary demolition and clearance work and to erect the two apartment blocks for a price of £257,000which of course might vary depending upon additions or omissions and cost variations. The specialist pile driving firm was unable to commence their work until the construction company had completed the demolition and site clearance works and accordingly pile driving did not commence until the first week in March 1990. Nevertheless the pile driving was completed by the last week in March and the pile capping and beaming was commenced. At this stage also detailed measurements were taken of the distances between the heads of the piles for the purpose of manufacturing floor slabs and steel work and the manufacture of these items by reference to such measurements was commenced. Once manufactured these floor slabs and steel works would be specific to the development in question because even if another similar development was proposed elsewhere the end position of the tops of the piles would not necessarily be and in this case were not in the exact position shown on the plans because when driving piles 40 feet to 60 feet into the ground there was bound to be some shift one way or the other.

7

When the period of the planning permission expired on the 8th of April 1990 the piling was complete for both blocksof apartments and pile capping and beaming had been completed for one block. A sum of £46,000 had been spent on the manufacture of floor slabs and steel work which were specific to this development and some of these had been delivered to the site.

8

Because of the shortness of time within which to do the work the Applicants sought a meeting with the senior Executive Officer in the Respondent's Planning Department (Mrs. Nixon) and that meeting took place in or about the 1st day of March 1990. The Applicants were anxious to know the attitude of the Respondent to the development and were assured that the Respondent favoured the development but no undertaking of any sort was given regarding an extension of the period of the planning permission. The Applicants were also anxious to know if their financial commitment would be accepted as qualifying for an extension of the period of the planning permission and again they were informed that that commitment would be duly considered by the Respondent but no undertaking was given that it would or could be accepted as constituting works carried out pursuant to the planning permission.

9

The site of the development was inspected by Mr. Ruttledge of the Respondent's Planning Department on the 21st of March and the 6th of April 1990 and he reported on his inspection on each occasion expressing doubts about the extent of the works for the purposes of an extension of the period for completion. The site was further inspected by another officer of the Respondent's Planning Department Mr. Daly on the 9th of April 1990. Mr. Daly had a discussion with the Applicants' Mr. Murphy in the course of which heexpressed his view that the amount of work done did not constitute substantial works for the purposes of an extension of the period of the planning permission and that the Respondent had no discretion as to granting or refusing an extension under Section 4 of the 1982 Act but that the Applicants could always make a fresh application for planning permission which would be favourably considered by the Respondent. This officer remained of the foregoing views at all material times.

10

On the 5th of April 1990 the Applicants wrote to the Respondent's Planning Department as follows:

"We wish to apply for an extension to Planning Permission No. 26455 granted on 9th April 1985 for our development at Crosstown Wexford. As can be seen from the supporting architects certificates substantial expenditure has taken place to the sum of £101,200representing in excess of 35% of the total contract price. This does not take consideration of the site purchase, legal and other professional fees to date."

11

On the 11th of April 1990 the Respondent replied enclosing the statutory form of application for an extension of the period of the planning permission which is required to be completed pursuant to the regulations of 1982 and continued as follows:

"It would appear that you intend to make a case that"substantial works" have been carried out because asignificant proportion of the overall cost of the development has been expended. If you wish to base your application on this approach you should submit the following information:-"

(i) Estimated cost of each stage of the development.

(ii) Estimated total cost.

(iii) Itemize and cost each stage of the...

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