Garden Village Construction Company Ltd v Wicklow County Council

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date01 October 1993
Neutral Citation1993 WJSC-HC 3610
Date01 October 1993
CourtHigh Court
Docket NumberNo. 1102p/1993

1993 WJSC-HC 3610

THE HIGH COURT

No. 1102p/1993
GARDEN VILLAGE CONSTRUCTION v. WICKLOW CO COUNCIL
JUDICIAL REVIEW

BETWEEN

GARDEN VILLAGE CONSTRUCTION COMPANY LIMITED
APPLICANT

AND

WICKLOW COUNTY COUNCIL
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

LOCAL GOVT (PLANNING & DEVELOPMENT)(AMDT) REGS 1982 SI 342/1982

LOCAL GOVT (PLANNING & DEVELOPMENT)(FEES) REGS 1984 SI 358/1984

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

FRENCHURCH PROPERTIES LTD V WEXFORD CO COUNCIL 1991 ILRM 769

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(10)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(2)

ABENGLEN, STATE V BORD PLEANALA 1982 ILRM 590

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

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

Synopsis:

PLANNING

Permission

Duration - Extension - Refusal - Ground - Validity - Whether substantial works carried out pursuant to permission - Multiple permissions granted in respect of single project - Local Government (Planning and Development) Act, 1963, s. 26 - Local Government (Planning and Development) Act, 1982, s. 4 - (1993/1102 P - Geoghegan J. - 1/10/93)- [1994] 3 IR 413 - [1994] 1 ILRM 354

|Garden Village Construction Co. Ltd. v. Wicklow County Council|

WORDS AND PHRASES

"Pursuant to such permission"

Planning - Permission - Duration - Extension - Refusal - Ground - Validity - Whether substantial works carried out pursuant to permission - Multiple permissions granted in respect of single project - (1993/1102 P - Geoghegan J. - 1/10/93)- [1994] 3 IR 413 - [1994] 1 ILRM 354

|Garden Village Construction Co. Ltd. v. Wicklow County Council|

Mr. Justice Geoghegan
1

This is an application for Judicial Review of a decision by Wicklow County Council refusing an application under Section 4 of the Local Government (Planning and Development) Act1982to extend the operative period of a particular planning permission, namely, planning register reference 1793/85, whereby permission was granted for a housing development (287 houses) at the Garden Village Mountkennedy domain, Newtownmountkennedy, County Wicklow. The application for the extension of time was combined with an application for the extension of time of two other planning permissions for housing developments in the same area relating to the planned overall development of some 80 acres of land for which outline permission had been granted by the Minister for Local Government in 1975. The extension of time in respect of the other two permissions was granted. I think it useful to quote in full the letter of application for the three extensions dated the 14th of June 1991. It reads as follows:-

"Planning Department,"

Wicklow County Council,
County Buildings,
2

Wicklow.

3

Re: Development at the Garden Village, Kilpedder, County Wicklow.

Permissions Ref. Nos: 36/84, 56/84 & 1793/85
Dear Sirs,
4

I write on the instructions of my client Garden Village Construction Company Limited, for extensions of the appropriate periods of the above grants of permission under Section 4 of the Local Government (Planning and Development) Act1982.These permissions are those outstanding within the original outline permission for this development (Ref. 295/74) and in accordance with the Local Government (Planning & Development) (Amendment) Regulations 1982, the following information and details are submitted.

5

(a) The name and address of the Applicant is: Garden Village Construction Company Limited, 11 Upper Mount Street, Dublin 2.

6

(b) The location of the land to which the permission relates: The Garden Village, Newtownmountkennedy, County Wicklow (see attached map delineating the whole development in red and the unfinished sections marked referring to the above permissions).

7

(c) The development to which the permissions relate: 514 houses with infrastructure (including roads, services, sewage treatment, works etc.) of which 124 have been built, including a 53 house section in the north east of the development which has been completed. The remaining sections of the overall development relate to 461 houses (of which 71 have been completed) in the remaining sections where the above permissions apply.

8

(d) Particulars of the interest held in the land: freehold owner.

9

(e) Details of the permissions:

36/84 dated 11th of June 1984
56/84 dated 25th of June 1984
1793/85 dated 19th of June 1986
10

(f) The outline permission which is the basis of this overall development (and which includes the above permissions) is 295/74 dated the 3rd of June 1975.

11

(g) The dates on which the permissions will cease or have ceased to have effect:

36/84 11th of June 1989
56/84 25th of June 1989
1793/85 19th of June 1991
12

(h) This development started in September 1983 and the date of commencement of development of the sections to which the above permissions relate is: July 1984.

13

(i) Particulars of the substantial works carried out pursuant to the above permissions before the expiration of the appropriate periods:

Aerial and topographical surveys,
Tree survey,
Sewage treatment plant and sludge drying beds 1,012 m,
Grass plots for tertiary treatment of effluent,
Effluent pipelines and manholes from sewage plant,
Main sewage lines to service development to treatment plant,
Clearance of site including removal of thirty acres top soil,
14

Levelling and grading of site for houses, open spaces and roads, including Garden Village Road, Garden Village Drive, Garden Village Avenue, Garden Village Court and access for vehicles to sewage treatment works,

15

Surfacing of roads and footpaths, planting of grass verges and trees,

16

Water supply from 33 inches and 24 inches mains with pipelines etc.,

Electricity supply from ESB including transformer stations,
Public lighting, boundary fencing,
17

Underground telephone trunking 124 houses.

18

The cost of these completed works, excluding the houses, is £527,000.

19

(j) The additional periods by which the above permissions are sought to be extended: 5 years for 36/84 and 56/84 and 8 years for 1793/85.

20

(k) The date on which the development is expected to be completed: 19th of June 1999.

21

In accordance with Local Government (Planning and Development) (Fees) Regulations 1984 I enclose cheque for £90 being £30 for each of the above permissions.

22

The above permissions are part of what has always been a single development, conceived as a whole and this application should be considered in this overall context. In this connection, it is appreciated that a separate new application for permission for 42 houses (in the name of Gannon Homes Limited) awaits decision and this application refers to part of this overall development.

Yours faithfully,
W.B. McLaughlin."
23

In order to explain why the extension was granted in the case of two of the permissions and refused in the case of the third, it is necessary to refer to the Section. Section 4 of the 1982 Act is unusual in that it confers no discretion whatsoever on a planning authority. In certain circumstances as set out in the section, it is mandatory to grant the extension. In every other case the planning authority is bound to refuse it. One of the requirements for the granting of the extension is a threefold one referred to in Section 4(1)(c) and which reads as follows:-

"(c) The authority are satisfied in relation to the permission that -"

24

(i) the development to which such permission relates commenced before the expiration of the appropriate period sought to be extended, and

25

(ii) substantial works were carried out pursuant to such permission during such period, and

(iii) the development will be completed within a reasonable time."
26

The refusal of the extension was made solely on the grounds that the planning authority was not satisfied as to compliance with (ii) above. The two extensions were granted because all the requirements of the Section were complied with. In the case of those two permissions works were carried out during the currency of the permission within the territory bounded by the usual red line in the relevant permission maps which the Respondents considered to be "substantial". It is common case that no substantial works were carried out within the red line boundary on the map attached to permission, planning register reference 1793/85 during the currency of that permission. The Respondent, on legal advice, took the view that the "works" referred to in Section 4(1)(c)(ii) had to be carried out within the relevant red line boundary. The Applicant contests this legal interpretation of the Section and maintains that the Respondent ought to have taken into account works outside the red line but nevertheless referable, whether exclusively or otherwise, to the development permitted by 1793/85. This is the main issue in the case, though there are others to which I will refer. The question as to whether works of the category relied upon by the Applicant were ever carried out during the currency of 1793/85 was never considered by the Respondent. Still less was it considered whether such works were "substantial" or not. These are not matters which this Court can determine as the Act clearly prescribes that it is for the planning authority to satisfy itself as to them.

27

As there were undoubtedly works carried out which at least arguably fell within the category relied upon by the Applicant and were at least arguably of a substantial nature, the Applicant (subject to other defences put forward by the Respondent) must be entitled to an Order of Certiorari quashing the refusal decision of the Respondent if the Applicant's interpretation of the section is correct.

28

It is crucial therefore to consider the meaning of the relevant wording in the section. In this connection I would refer first to the important distinction noted by Lynch J. inFrenchurch Properties Limited v. Wexford County Council ...

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