John Kelly v Leitrim County Council and an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 January 2005
• Neutral Citation: [2005] IEHC 11
• Court: High Court
• Docket Number: [2004 No. 1066 JR.]
• Date: 27 January 2005

KELLY v LEITRIM CO COUNCIL & BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

JOHN KELLY

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF LEITRIM AND AN BORD PLEANÁLA

RESPONDENTS

[2005] IEHC 11

Record No. 2004/1066 JR

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Leave - Extension of time - Considerations - Preliminary issue - Planning and Development Act 2000 (No 30), s 50(4)(a) - Local Government (Planning and Development) Act 1992, (No 14), s 19(3) - Extension of time refused (2004/1066JR - Clarke - 27/1/2005) [2005] IEHC 11

Kelly v Leitrim Co Council & Bord Pleanala

Facts: The applicant sought an order extending the time within which he could apply for leave to challenge by way of judicial review the validity of two planning related decisions. The applicant's application for leave was made 19 days outside the time limit provided for in section 50 subsection 4 of the Planning and Development Act 2000. The applicant attempted to explain the delay in applying for leave by relying on personal difficulties and the receipt by him of conflicting legal advices.

Held by Clarke J. in refusing to allow an extension of time: That notwithstanding the fact that there were no significant third party rights involved in this case, there was a significant period of delay and the limited explanation provided by the applicant did not constitute a good and sufficient reason to extend the time limit.

Reporter: L.O'S.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50(4)(A)(III)

PLANNING & DEVELOPMENT ACT 2000 S5(4)

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 ILRM 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

RSC O.84A

RULES OF THE SUPERIOR COURTS (NO 4) (REVIEW OF THE AWARD OF PUBLIC CONTRACTS 1998 SI 374/1998

DEKRA EIREANN TEO v MIN ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210

BRADY v DONEGAL CO COUNCIL 1989 ILRM 282

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

S (C) & ORS v MIN JUSTICE & AG 2005 1 ILRM 81 2004/45/10305

K (G) v MIN JUSTICE 2002 2 IR 418 2002 1 ILRM 401

CASEY v BORD PLEANALA 2004 2 ILRM 296 2003/9/1774

1 JUDGMENT of Mr. Justice Clarke delivered 27th January, 2005.

2 In these proceedings the applicant ("Mr. Kelly") seeks to challenge the validity of two planning related decisions. The first such decision relates to the issuing of an enforcement notice under the provisions of the Planning and Development Act, 2000 (as amended) (the "2000 Act") and was made by the first named respondent ("The County Council"). The second relates to an aspect of the decision of the second named respondent ("The Board") concerning the materiality and exempted status of a change of use in Mr. Kelly's premises.

3 The first decision does not require the special procedures for leave set out in s. 50 of the Planning and Development Act, 2000. That section is, however, applicable to any attempt to seek judicial review in respect of the second decision.

4 The application currently before the court is required by those procedures and is therefore, only concerned with the second decision. It arises under a notice of motion in which Mr. Kelly seeks both an extension of time under s. 50(4)(a)(iii) of the 2000 Act together with an order pursuant to that section granting leave to apply for judicial review. Further ancillary reliefs are also sought in the notice of motion.

5 By agreement between the parties it was determined that the question of the extension of time sought would be tried first leaving over the issue as to whether leave should be granted to a subsequent hearing which would only arise in the event that the time was extended.

6 Therefore the only issue which I have now to determine is as to whether an order extending the prescribed period within which application seeking leave to apply for judicial review must be brought should be made.

THE FACTS

7 Insofar as material to this aspect of the case the following facts appear to me to be relevant. The matters under review arise originally out of separate proceedings brought by the County Council against Mr. Kelly. Those proceedings related to alleged unauthorised development being carried out by Mr. Kelly at his hotel "The Landmark Hotel" at Carrick-on-Shannon, County Leitrim. As part of the settlement of those proceedings it was agreed that the County Council would make a reference to the Board under the provisions of s. 5(4) of the 2000 Act as to whether or not the activity in question constituted development as defined in that Act and, if so, whether such development was exempted development. The development in question related to a change in use. The change involved an alteration of the use of a structure from a leisure centre to a function room/nightclub within a hotel complex. The issues were as to whether such a change represented a material change in use and, if so, whether it was, nonetheless, exempted development. Having considered the matter the Board issued its decision on 17th September, 2004 which in material part provided as follows:-

"AND WHEREAS An Bord Pleanála has concluded that:-"

8 (a) the change of use from use as a leisure centre, comprising swimming pools, sauna and steam rooms along with an aerobics/gymnasium area and ancillary facilities, to use as a nightclub/functions area constitutes a material change of use in the context of s. 3 of the Planning and Development Act, 2000,

9 (b) the said change of use does not fall within the scope of any of the classes of use specified in part (4) of schedule 2 to the Planning and Development Regulations, 2001, and

10 (c) the associated alterations to the structure in question, involving the carrying out of works being related to a change of use not being exempted development, would come within the scope of s. 3 of the said Act;

11 NOW THEREFORE An Bord Pleanála in exercise of the powers conferred on it by s. 5(4) of the 2000 Act hereby decides that the said change of use of a leisure centre to a nightclub/functions area at the Landmark Hotel Carrick-on-Shannon, County Leitrim is development and is not exempted development."

12 While not directly relevant to this challenge to that decision it should also be recorded that some six days later on 23rd September, 2004 the County Council issued an enforcement notice which followed closely the same sequence of reasoning set out in the decision of the Board and which provided in relevant part as follows:-

"(2) as the owner of said property, this enforcement notice requires you to carry out the following works in order that the said unauthorised development is discontinued in a manner acceptable to the planning authority,

(a) where as An Bord Pleanála in exercise of the powers conferred on it by s. 5(4) of the Planning and Development Act, 2000 has decided, in an order dated 17th September, 2004 that the change of use of a leisure centre to a nightclub/functions area at the Landmark Hotel, Carrick-on-Shannon, County Leitrim is development and not exempted development, the planning authority considers that the development of a nightclub/functions area at the Landmark Hotel, Carrick-on-Shannon, County Leitrim constitutes an unauthorised change of use at the premises.

(b) you are required to immediately discontinue the unauthorised use of the leisure centre as a nightclub/functions area or any other use other than that of a leisure centre.

(c) you are further required to undertake works to remove all alterations to the leisure centre being works associated with the unauthorised change of use and to undertake works to develop the leisure centre in accordance with that permitted by the grant of permission in respect of File No. P13037 in the planning register. The period for compliance with this requirement to be 84 days from the date of this notice".

13 At a general level the complaint of Mr. Kelly in respect of both the decision of the Board and the enforcement notice issued by the County Council relates to what he says is a decision or finding contained in both of them to the effect that the works carried out to facilitate the change of use are themselves unauthorised and are, by the enforcement notice, required to be undone. Mr. Kelly accepts that the decision of the Board in respect of the materiality and lack of exempted status of the change of use itself was made within jurisdiction. Consequently he accepts that the planning authority was entitled, at least in principle, to seek to have him discontinue that use. His complaint with the decision of the Board relates solely to sub-paragraph (c) as set out above which he says amounts to an impermissible determination by the Board that the works associated with the transformation of the relevant portion of the hotel premises into a functions area/nightclub are not exempted and, what he describes as the consequentional decision by the County Council to include the removal of those works in the enforcement notice.

THE DELAY

14 It is common case that insofar as Mr. Kelly seeks to challenge by way of judicial review the decision of the Board he must comply with the provisions of s. 50 of the 2000 Act. Subsection (4) of that section requires that application for leave to apply for judicial review in respect of applications to which the section applies must be made within a period of 8 weeks commencing on the date of the decision of the relevant planning authority or the Board, or in certain cases not relevant to this application from the date on which notice of the relevant decision was first published.

15 Section 50(4)(a)(iii) further provides as follows:-

"The High Court shall not extend the period referred to in sub-paragraph ( 1) or (2) unless it considers that there is good and sufficient...