Garden Village Construction Company Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judgment Date: 28 July 1994
• Date: 28 July 1994
• Docket Number: [1993
• Court: Supreme Court

High Court

Supreme Court

[1993 No. 1102 P; S.C. Nos. 366 and 372 of 1993]

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

Garden Village Construction Company Limited

Applicant

and

Wicklow County Council

Respondent

Cases mentioned in this report:—

Burdle v. The Secretary of State for the Environment [1972] 1 W.L.R. 1207; [1972] 3 All E.R. 240.

Frenchurch Properties Ltd. v. Wexford County Council [1992] 2 I.R. 268; [1991] I.L.R.M. 769.

Jack Barrett (Builders) Ltd. v. Dublin County Council (Unreported, Supreme Court, 28th July, 1983).

Malvern Hills District Council v. The Secretary of State for the Environment(1982) 81 L.G.R. 13.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

R. v. The Secretary of State for the Environment, ex parte Percy Bilton Industrial Properties Ltd. (1975) 74 L.G.R. 244.

Readymix (Éire éire) Ltd. v. Dublin County Council (Unreported, Supreme Court, 30th July, 1974).

Spackman v. The Secretary of State for the Environment [1977] 1 All E.R. 257.

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381.

The State (F.P.H. Properties Ltd.) v. An Bord Pleanála [1987] I.R. 698; [1989] I.L.R.M. 98.

The State (McCoy) v. Dun Laoghaire Corporation [1985] I.L.R.M. 533.

Local government - Planning - Planning permission - Application for extension of period of planning permission - Carrying out of substantial works "pursuant to" such permission a pre-requisite to grant of such extension - Separate planning permissions granted for adjoining sites - Whether infrastructural works authorised by one permission could constitute works carried out "pursuant to" another permission if benefiting development authorised by such other permission - Meaning to be attached to "substantial works" - Local Government (Planning and Development) Act, 1982 (No. 21), s. 4, sub-s. 1 (c) (ii).

Local government - Planning - Planning permission - Permission subject to conditions relating to giving of security and contributions - Statute providing that permission"shall be of no effect and shall be disregarded" until such conditions complied with - Whether non-compliance rendering such permission a nullity - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-ss. 2 and 10.

Judicial review.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgments of Geoghegan J. and Blayney J., infra.

On the 29th July, 1992, the applicant was given leave by the High Court (Johnson J.) to apply for relief by way of judicial review. Grounds of opposition were filed on the 2nd November, 1992. On the 1st December, 1992, the High Court (O'Hanlon J.) ordered, pursuant to O. 84, r. 26, sub-r. 5 of the Rules of the Superior Courts, 1986, that the proceedings continue as if commenced by plenary summons. A plenary summons was issued on the 16th February, 1993.

The action was heard by the High Court (Geoghegan J.) on the 11th, 12th, 13th, 14th, 18th, 19th, 20th, 21st, 25th, 26th and 27th May, 29th and 30th June and 1st, 2nd, 13th and 14th July, 1993.

Notice of appeal was filed by the respondent on the 2nd December, 1993. Notice of appeal was also filed by the applicant in relation to the dismissal of its claim for damages.

On the 10th December, 1993, the Supreme Court (Finlay C.J., Blayney and Denham JJ.) granted a stay on the order of mandamus, pending the determination of the respondent's appeal.

The respondent's appeal was heard by the Supreme Court (Egan, Blayney and Denham JJ.) on the 13th and 14th July, 1994, the applicant's appeal having been adjourned until a later date.

By s. 4, sub-s. 1 of the Local Government (Planning and Development) Act, 1982, a planning authority "shall", as regards "a particular permission", grant an extension of the period of such permission "by such additional period as the authority consider requisite to enable the permission to which the development relates to be completed", if certain requirements are fulfilled. Among those requirements is that specified at sub-s. 1 (c) (ii), namely that the authority are satisfied that substantial works were carried out"pursuant to such planning permission" before its expiration.

Section 4, sub-s. 2 specifies the period within which the planning authority must notify the applicant for an extension of its decision, and further provides for an extension of the period of the planning permission in default of such notification being given within the specified time.

By s. 2 of the Local Government (Planning and Development) Act, 1963, "works"includes any "act or operation of construction, excavation, demolition, extension, alteration, repair or renewal".

"Development" is defined in s. 3 of the Act of 1963 as meaning, save where the context otherwise requires, "the carrying out of works on, in or under any land".

By s. 24, sub-s. 1 of the Act of 1963, "development", save for exempted development, cannot be carried out without planning permission; and by virtue of s. 24, sub-s. 2, such development can only be carried out "under and in accordance with" such permission.

Section 26, sub-s. 10 of the Act of 1963 provides that where a permission is granted subject to conditions relating to the giving of security for the completion of the development or the making of contributions by the developer towards costs incurred by a local authority, such permission "shall be of no effect and shall be disregarded until the condition or conditions has or have been complied with".

In 1975 outline permission for a housing development on a ninety-six acre site was granted. A number of planning permissions were then obtained in respect of different areas of the site. The applicant sought to extend the period of three of those permissions, pursuant to s. 4 of the Act of 1982. The application was refused in respect of one of the permissions, on the grounds that substantial works had not been carried out pursuant to that permission.

The applicant sought to quash that decision. It was accepted that no works had been carried out on the site to which the permission related, but the applicant contended that the respondent should have taken into account infra-structural works authorised by the other permissions and carried out outside the boundaries of the site to which the permission related, but which benefited the development permitted on that site. The applicant also sought an order of mandamus requiring the respondent to grant the application for an extension; an order quashing the notice of the decision to refuse an extension, thereby entitling it to avail of the default procedure in s. 4, sub-s. 2 of the Act of 1982; and damages for breach of statutory duty by virtue of a "studied policy of non-co-operation".

The respondent contended that even if the interpretation of s. 4, sub-s. 1 (c) (ii) advanced by the applicant was correct, the planning permission was of no effect and should be disregarded by virtue of s. 26, sub-s. 10 of the Act of 1963; and that, accordingly, such a permission could not be extended, and any works carried out pursuant to it constituted unauthorised development and should not be taken into account.

Held by Geoghegan J., in quashing the decision of the respondent, 1, that where there were a number of planning permissions relating to an overall site, infrastructural works which were of benefit to a development authorised by a particular permission could be regarded as works carried out "pursuant to" that permission for the purposes of s. 4, sub-s. 1 (c) (ii) of the Act of 1982, even though they had been carried out outside the site to which that permission related, had been authorised by one of the other permissions, and had also benefited the development authorised by that other permission; provided that the works relied on had been carried out during the period of the permission the subject of the application under s. 4, sub-section 1.

Frenchurch Properties Ltd v. Wexford County Council [1992] 2 I.R. 268 applied.

2. That the argument based on s. 26, sub-s. 10 of the Act of 1963 must be rejected, in that sub-s. 10 only affected the operation of the permission and did not in any circumstances render it a complete nullity in the sense that it had never existed; and also because s. 4, sub-s. 1 did not contain any requirement that the permission in question not be inoperative by virtue of sub-section 10.

3. That accordingly the decision itself should be quashed; but that the notice of the decision would not be quashed, as that notice was still effective to prevent the permission being extended in default, under s. 4, sub-section 2.

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381 applied.

4. That the court would not order the respondent to grant the application to extend the period of the permission, as it was still a matter for the respondent to satisfy itself that the works relied on were "substantial"; but would, if the pleadings were amended appropriately, order the respondent to reconsider and redetermine the application, and to bear in mind, in deciding the length of any extension, the delayed decision.

5. That while it appeared that the applicant had been treated badly by the respondent over a period of years, it had not established a deliberate and concerted policy such as would give rise to tortious liability, and accordingly was not entitled to damages.

The respondent appealed against the quashing of its decision, while the applicant appealed against the dismissal of its claim for damages; consideration of the latter appeal was deferred.

Held by the Supreme Court (Egan, Blayney and Denham JJ.), in allowing the respondent's appeal, 1, that the use of the expression "particular permission" in s. 4, sub-s. 1 of the Act of 1982 signified that the permission which it was sought to extend must be distinguished from all other permissions. To give the expression its proper...