Hodgers and Another v Cork County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 05 May 2006 |
| Neutral Citation | [2006] IEHC 139 |
| Court | High Court |
| Docket Number | [No. 241 JR/2004] |
| Date | 05 May 2006 |
[2006] IEHC 139
THE HIGH COURT
BETWEEN
AND
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33
CORK COUNTY DEVELOPMENT PLAN 2003
CORK COUNTY DEVELOPMENT PLAN 1996
PLANNING & DEVELOPMENT ACT 2000 S50(2)(f)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)
KINSELLA v DUNDALK TOWN COUNCIL UNREP HIGH COURT KELLY 3.12.2004 2004/26/6127
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)(b)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)(a)
ASHBOURNE HOLDINGS LTD v BORD PLEANALA UNREP KEARNS 19.6.2001 2001/1/189
PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)
PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)(i)
KENNY v BORD PLEANALA & ORS 2001 1 IR 704 2002 1 ILRM 68
BEGLEY & CLARKE v BORD PLEANALA UNREP O CAOIMH 23.5.2003 2004/4/889
RAIU v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 12.2.2003 2003/45/10951
GRITTO & ORS v MIN FOR JUSTICE UNREP LAFFOY 16.3.2005 2005/28/5849
PLANNING AND ENVIRONMENTAL LAW
Appeal
Point of law of exceptional public importance- Desirable in public interest - Application for leave to apply for judicial review refused- Planning permission -Whether applicant improperly and invalidly required to provide additional information - Whether point of law to be certified by way of appeal -Standard required - Kenny v An Bord Pleanála [2001] 1 IR 704 considered -Planning and Development Act 2000 (No 30),s 50(2) - Planning and Development Regulations 2001 (SI 600/2001), reg 33(1) -Leave to appeal refused (2004/241 JR -Murphy J - 5/5/2006) [2006] IEHC 139
Hodgers v Cork County Council
Facts: The applicants applied for a certificate for leave to appeal to the Supreme Court following this court’s refusal for leave to apply for judicial review of a decision of the respondent refusing to grant them planning permission. The applicants submitted that the respondent improperly and invalidly sought information relating to their existing dwelling house and consequently they were entitled to have a point of law by way of appeal certified by this Court in relation to the issue of propriety and validity of requiring information.
Held by Murphy J. in refusing the application: That the applicants failed to establish that the decision involved points of law of exceptional public importance and that it was in the public interest that an appeal should be taken to the Supreme Court.
Reporter: L.O’S.
Over two years ago, on 28th January, 2004, Cork County Council, the respondent, refused to grant planning permission for works consisting of a dwelling house and lands situate at Garryvoe Lower in the County of Cork bearing planning reference 03/5294.
This application for a certificate for leave to appeal to the Supreme Court was made on behalf of the applicants on 15th March, 2006 following this court's refusal by way of ex tempore judgment delivered the 22nd day of December, 2005, for leave to apply for judicial review. The court had also refused an application to amend the grounds for ease to apply for judicial review.
The grounds of that application were,inter alia, that the respondent's use of the procedures under Article 33 of the Planning and Development Regulations, 2001 requiring further information by way of letter dated 15th December, 2003, was an improper and invalid use of that power.
The reasons given for refusal was that the proposed location would "result in an undesirable density of development in a rural area where public water supply and sewage facilities are not available and would therefore be contrary to proper planning and development of the area".
The site on which it was proposed to build the applicants” dwelling house was located in an area where the Coastal Housing Control Policy, set out in the County Development Plan 2003, applied. The development plan recognised that sensitive, scenic and coastal parts of the county had relatively limited capacity (both environmentally and in terms of scenic amenity) to accommodate individual houses in significant numbers. It was considered that priority should be given to the fulltime housing needs of local people who live in the area.
The respondent had written to the applicants by registered post on 15th December, 2003 at the address on the planning application and on the planning notice, asking whether the applicants currently owned a residence in Midleton. The applicants averred that they had not received that letter. Nonetheless the applicants, by letter dated the 22nd day of December, 2003, headed Planning Application No. S/03/5294 Response to (Certain) objections/observations … the applicants referred to that house as follows:
"As to the property at 21 Midleton Downs, this is not suitable and does not meet our needs. That said, we are not answerable to anybody about 21 Midleton Downs."
The respondent did not reply but, on 28th January, 2004, refused to grant planning permission.
The applicants had pleaded that the respondent had acted unreasonably andultra vires its powers and in violations of the principles of natural and constitutional justice in determining the applicants application for planning permission by reference to an alleged facility in the area in relation to people from, or living in, that area whom the respondent considers to have a genuine housing need and in failing to advise would be applicants for planning permission, including the applicants, of such policy and/or facility.
On 21st December, 2005, the court refused leave to seek the judicial review as well as refusing the applicants liberty to amend their statement of grounds to add a further ground thereto and refused leave to seek judicial review.
2 2.1 The Cork County Development Plan, 2003 (issue 1: February 2003) provides, in relation to overall strategy, certain requirements in relation to rural, coastal and island areas as follows:
"Strategic Principles û Rural, Coastal and Islands"
23.10 Policies relating in particular to Rural, Coastal and Island areas are set out in Chapter 8 of the Plan. The strategic requirements can be stated as follows:
What are the strategic principles for Rural, Coastal and Island Areas…?
a a. Communities in rural, coastal and island areas have many separate but distinctive needs from those in urban areas and this should be recognised in developing planning policy;
b b. Population loss and persistent rural decline are key issues for many rural and island areas, and also for many coastal areas, and planning policy should be directed at reversing these trends;
c c. Island communities need particular support in their economic, social and cultural development to ensure equality of opportunity with the mainland;
d d. Many coastal areas have limited capacity to accommodate large scale development and their environmental assets should be protected. Other coastal areas are more robust but they can still be threatened by inappropriate development and management measures."
2 2.2 The special requirements in such areas, following the policy of the previous Development Plan, are stated as follows:
"Special Requirements in Scenic and Coastal Areas"
2 3.3.10 This plan continues the policy of the 1996 Development Plan which recognised that the sensitive scenic and coastal parts of the county have relatively limited capacity (both environmentally and in terms of scenic amenity) to accommodate individual houses in significant numbers. In such areas, where there are high levels of pressure for development of this kind, it is considered that the priority must be given to the full time housing needs of local people who live in the area.
3 3.3.11 Allowing exceptions for local people in such scenic and coastal areas also allows local people to have access to sites which otherwise might be prohibitively expensive."
2 2.3 Three objectives for rural houses in such areas are specified in the Development Plan of 2003:
"Rural Houses in Scenic and Coastal Areas"
(a) It is an objective to recognise that the scenic and coastal parts of the county generally have limited capacity, both in environmental and scenic amenity terms, to accommodate individual dwellings in the countryside.
(b) It is an objective to strongly discourage new dwellings in such areas except within established villages (or village nuclei). This restriction is relaxed in principle for the year-round occupation of people from the local area and subject to suitable sites being available.
(c) For the purposes of this objective, “coastal areas” means those areas within sight of the sea, a lake or an inlet and “scenic areas” includes those areas identified as scenic landscape on the scenic amenity maps in Volume 4 of this plan."
2 2.4 Finally, the Implementing and Monitoring of Settlement Policy is stated to be:
"3.3.12 The planning principles and objectives presented in this chapter have set out a settlement policy that seeks to establish a strong network of settlements throughout the county, to build up rural villages and to safeguard the needs of rural communities in a practical way. An important effect of this is that in certain circumstances there will be strict policy controls on individual rural dwellings."
The applicants submit that the respondent improperly and invalidly sought information relating to the applicants” existing dwelling house under the Planning and Development regulations. Article 33 of those regulations falls under the heading of "further information" and provides as follows:
2 Article 33. û (1) Where a planning authority acknowledges receipt of a planning application in accordance with...
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