Illium Properties Ltd v Dublin City Council

JurisdictionIreland
JudgeMr. Justice O'Leary
Judgment Date15 October 2004
Neutral Citation[2004] IEHC 327
Docket Number[No. 711 JR/2001]
CourtHigh Court
Date15 October 2004

[2004] IEHC 327

THE HIGH COURT

O'Leary

[No. 711 JR/2001]
IRLHC 327/[2004]
ILLIUM PROPERTIES LTD v. DUBLIN CITY COUNCIL
JUDICIAL REVIEW

BETWEEN

ILLIUM PROPERTIES LIMITED
APPLICANT

AND

THE LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN NOW THE DUBLIN CITY COUNCIL
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1999

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 33

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

ABENGLEN PROPERTIES, STATE V DUBLIN CORP 1989 IR 381

CONLON CONSTRUCTION LTD, STATE V CORK CO COUNCIL UNREP BUTLER 31.7.75

JUDGMENT of the Honourable
Mr. Justice O'Leary
1

dated 15th day of Oct- 2004.

2

The Applicant by way of Judicial Review applied on 26thOctober, 2001 for an worder in the following terms:

3

1. An Order ofCertiorari quashing the decision of the Respondent to request further information by letter dated the 10th day of September, 2001.

4

2. A Declaration that the application for planning permission Register Reference No. 2105/01 is deemed granted planning permission by operation of law pursuant to Section 26 of the Local Government (Planning & Development) Act,1963, as amended.

5

3. A Declaration that the letter dated the 10th day of September, 2001 on planning application Register Reference No. 2105/01 was not such as to amount to a bona fide request for further information pursuant to the Local Government (Planning and Development) Acts, 1963–1999.

6

4. Interim and/or interlocutory relief.

7

5. Further and other relief.

8

6. The costs of this application.

9

The application was based on the following grounds:

10

1. That the Notice dated the 10th day of September, 2001 on planning application Register Reference No. 2105/01 did not amount to a valid request for further information pursuant to the Local Government (Planning and Development) Acts,1963ndash;1999.

11

2. The Notice dated the 10th day of September, 2001 could not amount to a valid request for further information in circumstances where the matters disclosed in that letter already matters which the local authority had in its possession and/or which were matters not related to the nature and extent of the proposal submitted for their determination pursuant to planning application Register Reference No. 2105/01.

12

3. The aforesaid Notice dated the 10th day of September, 2001 does not comply with the requirements of Article 33 of S.I. 86 of1994 and is not such as to extend the period within which the local authority can determine the application and avoid a permission being deemed granted within the aforesaid appropriate period.

13

4. The aforesaid Notice dated the 10th day of September, 2001 was merely a device employed by the Respondent in order to extend the appropriate period and avoid complying with the statutory obligations to give a decision within two months of the date of the receipt of an application as is required by Section 26(4) of the Local Government (Planning and Development) Act, 1963.

14

5. The planning authority, having received a valid application, are in the circumstances required to give notice of their decision within the two month period and cannot rely on the Notice dated the 10th day of September, 2001 in those circumstances. Accordingly, a decision to grant planning permission in accordance with the plans and documentation submitted is deemed to have been granted on the last day of the appropriate period.

15

6. Having regard to the statutory scheme as enshrined in the Local Government (Planning and Development) Acts,1963–1999, and in particular the mandatory requirements contained in Section 26(4) of the 1963 Local Government (Planning and Development) Act,1963, the local authority have a duty only to issue bona fide requests for additional information and not use that procedure to extend the appropriate period which is, if that is the intention, an abuse of the statutory powers conferred on them.

16

7. The decision of the Respondent to issue such a Notice and regard to its contents is unreasonable and contrary to plain reason and common sense.

17

Mr Justice Kelly granted leave to apply for Judicial Review on the above terms and on the grounds set out above on 26th October, 2001.

18

The Respondent filed a statement of Opposition dated 30thNovember, 2001 in the following terms:

19

1. By way of preliminary objection, the Applicant is precluded and/or estopped from seeking the reliefs sought by its own acts and/or omissions and/or in circumstances where the Respondent notified the Applicant that a decision had been made on the application in Planning Register Reference No. 2105/01 on the 6th day of November, 2001.

20

Without prejudice to and/or in addition to the aforementioned preliminary objection the Respondent opposes the Applicant's application for judicial review as follows:-

21

2. The Applicant is not entitled to the reliefs claimed and/or to any relief by way of an application for Judicial Review.

22

3. The Applicant has failed to state any grounds which would entitle it to the discretionary sought and/or to any relief by way of an application for judicial review.

23

2 4.It is denied that the notice dated the 10th day of September, 2001 in Planning Register Reference No. 2105/01 did not amount on a valid request for further information pursuant to the Local Government (Planning and Development) Acts,1963-1000 as alleged.

24

3 5.It is denied that the notice dated the 10th day of September, 2001 could not amount to a valid request for further information in circumstances where it is alleged that the matters disclosed in that letter were already matters which the related to the nature and extent of the proposals submitted for their determination pursuant to Planning Application Register Reference No. 2105/01 as alleged.

25

6. It is denied that the aforesaid Notice dated the 10thSeptember, 2001 does not comply with the requirements of Article 33 of S.I. 86 of 1994 and is not such as to extend the period within which the Local Authority and/or the Respondent the application and avoid a permission being deemed granted within the aforesaid appropriate period as alleged.

26

7. It is denied that the aforesaid Notice dated the 10thSeptember, 2001 was merely a device as alleged employed by the Respondent in order to extend the appropriate period and avoid complying with the statutory obligations to give a decision within two months of the date of the receipt of an application as is required by Section 26(4) of the Local Government (Planning and Development) Act,1963as alleged.

27

8. It is denied that the Planning Authority and/or the Respondent having received a valid application are, in the circumstances, required to give notice of the decision within the two months period and cannot rely on the Notice dated the 10th September, 2001 in the circumstances alleged. The Respondent upon receipt of a planning application, may be notice in writing require the Applicant to submit any further information (including any plans maps or drawings or any information as to nay estate or interest in or right over land) which it considers necessary to enable it to deal with the application any may further require the Applicant to produce any evidence which it may reasonably require the Applicant to submit any further information (including any plans, maps or drawings or any information as to any estate or interest in or right over land) which it considers necessary to enable it do deal with the application and may further require the Applicant to produce any evidence which it may reasonably require to verify any particulars or information give in or in relation to the application. It is therefore denied that a decision to grant planning permission in accordance with the plans and documentation submitted is deemed to have been granted on the last day of the appropriate period as alleged.

28

9. To the extent that the Applicant is alleging that the request for further information was not bona fide, the said allegation is strenuously denied. It is denied that the Respondent used the procedure requesting additional information to extend the appropriate period and/or that it abused its statutory powers in any way and in this regard the contents of paragraph 6 of the Statement of Grounds are denied as if the same were herein set forth and traversed seriatim.

29

10. It is denied that the decision of the Respondent to issue a Notice for Further Information and/or the contents of the said Notice are unreasonable and contrary to plain reason and common sense as alleged.

30

11. Such further and other grounds as may be allowed by this Honourable Court.

31

The following evidence was before the Court in relation to the action:

32

1. Affidavit of Dermot Desmond (a principal of the Applicant company) dated 23rd October, 2001 on behalf of the Applicant

33

2. Affidavit of Norman Boyle Senior Planning Officer of and on behalf of the Respondent dated 30th November, 2001

34

3. Affidavit of Nicola Matthews Conservation Officer of and on behalf of the Respondent dated 30th November, 2001

4. Supplemental Affidavit of Dermot Desmond dated 21stDecember, 2001
35

5. Supplemental Affidavit of Nicola Matthews (otherwise Nicki Matthews) dated 21st February, 2002.

36

6. Second supplemental Affidavit of Dermot Desmond dated 15th July, 2002.

37

7. Additional documents introduced by the respondent (including a request from Norman Boyd planning officer to Dublin Planning Officer dated 10th September 2001).

38

There were also discovery motions and motions to cross-examine those who swore the affidavits. The discovery motions did not disclose any additional material relevant to the issues before the Court and the cross-examinations did not take place.

39

The following facts were admitted and or proved to the satisfaction of the Court...

To continue reading

Request your trial
4 cases
  • Paul Maye v Sligo Borough Council
    • Ireland
    • High Court
    • 27 Abril 2007
    ...County Council [2007] IEHC 298, (Unreported, High Court, Clarke J., 26th April, 2007). Illium Properties Ltd. v. Dublin City Council [2004] IEHC 327, (Unreported, High Court, O'Leary J., 15th October, 2004). McGovern v. Dublin Corporation [1999] 2 I.L.R.M. 314. Molloy v. Dublin County Counc......
  • Tangi v Minister for Justice, Equality & Law Reform
    • Ireland
    • High Court
    • 12 Marzo 2010
    ...Commission (Case T-213/00) [2003] ECR I-6171; Handlbauer (Case C-218/02) [2004] ECR I-6171; Illium Properties Ltd v Dublin City Council [2004] IEHC 327 (Unrep, O'Leary J, 15/10/2004); Laub (Case C-428/05) [2007] ECR I-5069; Nederlands Fedeative Vereniging de Groothandei v Commission (Case T......
  • Wicklow County Council v Forest Fencing Ltd and Another
    • Ireland
    • High Court
    • 13 Julio 2007
    ...of that similarly worded provision O'Leary J. at p. 10 of his unreported judgment in Illium Properties Limited v. Dublin City Council, [2004] IEHC 327 said the following:- "The power of the planning authority to request further information under this Article is limited to matters which fall......
  • Scanlon v Sligo County Council
    • Ireland
    • High Court
    • 14 Abril 2011
    ...2000/14/5399 O'KEEFFE v BORD PLEANALA 1993 I IR 39 ILLIUM PROPERTIES LTD v DUBLIN CITY COUNCIL UNREP O'LEARY 15.10.2004 2004/22/5201 2004 IEHC 327 PLANNING & DEVELOPMENT ACT 2000 S34(8)(B) PLANNING & DEVELOPMENT ACT 2000 S34(8)(C) KINSELLA v DUNDALK TOWN COUNCIL UNREP KELLY 3.12.2004 2004/2......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT