Graves v an Bord Pleanála

JurisdictionIreland
Judgment Date17 June 1997
Date17 June 1997
Docket Number[64 J.R. 1197]
CourtHigh Court

High Court

[64 J.R. 1197]
Graves v. An Bord Pleanála
George Graves
Applicant
and
An Bord Pleanála
Respondent
Cork County Council and Raymond Hennessey, Notice Parties

There are no cases mentioned in this report.

Equity - Estoppel - Planning - Appeal - Appeal rejected by respondent as invalid - Confirmation of receipt of appeal sought before expiry of time limit - No reply sent - No notification that appeal invalid before expiry of time limit - No opportunity to resubmit valid appeal before expiry of time limit - Whether respondent estopped from denying validity of appeal.

Local government - Planning and development - Appeal procedure - Planning permission granted by local authority - Appeal to An Bord Pleanála - Acknowledgement by respondent that appeal received before expiry of extended appropriate period for appeal - Whether statutory procedure for appealing complied with - Whether strict compliance necessary where receipt of appeal acknowledged - Whether appeal must be left personally by appellant or his agent with an employee of the respondent at the offices of the respondent during office hours - Local Government (Planning and Development) Act, 1992 (No. 14), s. 4, sub-s. 5 (b).

Local government - Planning - Appeal - Time limit - Extension - Appeal procedure applicable - Planning permission granted by local authority - Appeal to An Bord Pleanála - Offices closed on final day of appropriate period for appeal - Appeal received on day offices next open - Statutory provision extending time and validating appeals received on day offices next open - Statutory provision complied with - Whether provision only validating invalidity flowing from expiry of the time limit - Whether validating any other element of appeal - Whether normal statutory procedure for appealing applicable to such appeals - Whether failure to comply with statutory procedure for appealing can be cured by compliance with validation provision - Local Government (Planning and Development) Act, 1992 (No. 14), s. 17, sub-s. 1 (b).

Judicial review.

The facts have been summarised in the headnote and are set out in the judgment of Kelly J., infra.

On foot of originating notice of motion dated the 20th February, 1997, the High Court (Shanley J.), on the 7th April, 1997, granted leave to the applicant to seek the following reliefs by way of judicial review:—

  • (a) an order of certiorari quashing the decision of the respondent communicated to the applicant by letter dated the 29th January, 1997, which stated that the appeal of the applicant lodged against the decision of the first notice party to grant planning permission to the second notice party, was invalid;

  • (b) an order of certiorari quashing the said decision of the respondent communicated by letter dated the 29th January, 1997, which declined to hear the appeal of the applicant;

  • (c) a declaration that the said appeal was made within the appropriate period specified in s. 26, sub-s. 5 of the Local Government (Planning and Development) Act, 1963 (as substituted by s. 3, sub-s. (a) of the Local Government (Planning and Development) Act, 1992) and s. 17, sub-s. 1 (b) of the Act of 1992 and that the said appeal complied with the provisions of the Act of 1992;

  • (d) an order of mandamus directing the respondent to hear and determine said appeal.

The application was heard by the High Court (Kelly J.), on the 28th May, 1997.

Section 4, sub-s. 5 of the Local Government Planning and Development Act, 1992, provides, inter alia that "an appeal shall be made:—

  • (a) by sending the appeal by prepaid post to the Board, or

  • (b) by leaving the appeal with an employee of the Board at the offices of the Board during office hours . . ."

Section 17, sub-s. 1 (b) provides that "where the last day of the appropriate [appeal] period . . . is a Saturday . . . an appeal shall . . . be valid as having been made in time if received by the Board on the next following day on which the offices of the Board are open."

The applicant instructed his solicitors to appeal to the respondent a decision made on the 19th December, 1996, by the first notice party to grant planning permission to the second notice party.

Accordingly, by virtue of s. 26, sub-s. 5 of the Act of 1963 as substituted by s. 3, sub-s. (a) of the Act of 1992, the period for making such appeal expired on Saturday the 18th January, 1997, which was a day on which the offices of the respondent were closed. However, by virtue of s. 17, sub-s. 1 (b) of the Act of 1992, the time limit was automatically extended to the 20th January, 1997, when the offices were next open.

On the 18th January, 1997, at the offices of the respondent, the appeal was hand delivered to a security guard, who was not an employee of the respondent.

On the 20th January, 1997, before the offices opened, an employee of the respondent found the envelope containing the appeal which appeared to have been shoved under the door of the respondent's offices. He left it at the respondent's reception desk. It was conceded by the respondent that a different employee of the respondent took possession of the envelope containing the appeal and applied the date-stamp to the contents at the offices of the respondent, during office hours, on the 20th January, 1997.

On the same date, approximately 90 minutes before the closing of the respondent's offices, the applicant's solicitor sent a fax requesting confirmation of receipt of the appeal.

No reply was forthcoming until the applicant received a letter from the respondent dated the 29th January, 1997, which stated that the appeal was invalid as it was not received during office hours on the 20th January, 1997, and that compliance with all requirements of s. 4 of the Act of 1992 was necessary.

The applicant instituted judicial review proceedings seeking an order of certiorarito quash the decision of the respondent communicated to the applicant by the letter dated the 29th January, 1997, claiming that the respondent had misdirected itself in law. The applicant submitted that once an appeal is left by somebody with an employee of the respondent at the respondent's offices during office hours and receipt is acknowledged by the respondent, s. 4, sub-s. 5 (b) of the Act of 1992 has been complied with, that the plain wording of s. 17, sub-s. 1 (b) of the Act of 1992 stated that appeals lodged pursuant to the section are valid if simply "received" and accordingly, the requirements in s. 4, sub-s. 5 (b) of the Act of 1992 were not applicable, that by reason of the...

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7 cases
  • Environmental Trust Ireland v an Bord Pleanála
    • Ireland
    • High Court
    • 3 October 2022
    ...240 Article 302(5) PDR 2001. 241 The Board's adoption of its office hours was approved, obiter, by Kelly J in Graves v An Bord Pleanála [1997] 2 IR 205 as follows: “It is pertinent to point out that there is no statutory definition of the phrase “office hours” as used in s 4 of the Act of 1......
  • Sweetman v an Bord Pleanála
    • Ireland
    • High Court
    • 31 January 2020
    ...which are of particular assistance in this context – namely the decisions of Kelly J. (as he then was) in Graves v. An Bord Pleanála [1997] 2 IR 205 and McAnenley v. An Bord Pleanála [2002] 2 IR 763. In Graves, there was a failure to comply to the letter with s. 4 (5) (b) of the Local Gover......
  • Murphy v Cobh Town Council and Another
    • Ireland
    • High Court
    • 26 October 2006
    ...LTD 1980 ILRM 64 HOWARD v COMMISSIONER FOR PUBLIC WORKS 1993 ILRM 665 TELECOM EIREANN v O'GRADY 1998 3 IR 432 GRAVES v AN BORD PLEANALA 1997 2 IR 205 LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(5) LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S17(1)(b) LOCAL GOVT (PLANNING & DEVELOPMENT)......
  • Micaud Investment Management Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 31 July 2018
    ...be provided to the respondent. I cannot disregard this statutory requirement.' 47 In an earlier decision, Graves v. An Bord Pleanála [1997] 2 I.R. 205, Kelly J. considered the provisions of s. 4(5) of the Local Government Planning and Development Act 1992, which provided, inter alia, that ......
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