Kelly v Roscommon County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 20 June 2006
• Neutral Citation: [2006] IEHC 197
• Docket Number: [No. 1012 JR/2005]
• Court: High Court
• Date: 20 June 2006

[2006] IEHC 197

THE HIGH COURT

[No. 1012 JR/2005]

KELLY v ROSCOMMON CO COUNCIL

IN THE MATTER OF SECTION 50 OF THE PLANNING

AND DEVELOPMENT ACT 2000

BETWEEN

BEN KELLY

APPLICANT

AND

ROSCOMMON COUNTY COUNCIL

RESPONDENT

AND

MICHAEL GRIFFIN

NOTICE PARTY

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19(4)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 AT 26(3)(b)

PLANNING & DEVELOPMENT ACT 2000 S37(6)

PLANNING & DEVELOPMENT ACT 2000 S37(6)(d)(I)

PLANNING & DEVELOPMENT ACT 2000 S37(6)(d)(II)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19(I)(b)

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/5/1198

MIN FOR JUSTICE v DUNDON 2005 2 ILRM 149

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

CRAIES ON STATUTE LAW 1971 7ED 65

CRAIES ON STATUTE LAW 3ED 40

INTERPRETATION ACT 2005 S19

INTERPRETATION ACT 1937 S2

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S5(b)

PLANNING & DEVELOPMENT ACT 2000 ART 19(I)(e)

PLANNING AND ENVIRONMENTAL LAW

Planning permission

STATUTORY INTERPRETATION

Construction

Site notice - Whether site notice inscribed or printed on yellow background required -Applicant failing to notice erection of notice- Whether decision to grant retention was invalid - Minister for Justice v Dundon [2005] IESC 13, [2005] 1 IR 261, Mulcahy v Minister for Marine (Unrep, Keane J,4/11/1994) and Howard v Commissioners of Public Works [1994] 1 IR 101 considered -Planning and Development Regulations 2001(SI 600/2001), regs 19(4) and 26(3)(b) - Planning and Development Act 2000 (No 30), ss 2 and 37(6) - Relief refused (2005/1012JR- McGovern J - 20/6/2006 [2006] IEHC 197 Kelly v Roscommon County Council

Facts: The applicant sought an order of certiorari quashing the decision of the respondent granting retention planning permission to the notice party on the grounds that such application was invalid due to non-compliance with the requirements of Article 19 of the Regulations of 2001. Specifically, the applicant alleged that as a result of the initial application for planning permission being deemed invalid, the notice party ought to have erected a site notice for the subsequent application for retention permission on a yellow background. The applicant submitted that the failure by the notice party to erect a yellow site notice was in breach of the 2001 Regulations.

Held by McGovern J. in refusing the application: That once the original application for planning permission was deemed to be invalid it ceased to be a planning application within the meaning of the 2000 Act. Consequently, the subsequent application was the first and only “planning application” within the meaning of the Act of 2000 and therefore the site notice was in compliance with Article 19(1)(e) of the 2001 Regulations.

Reporter: L.O’S.

Mr. Justice McGovern

1 This is an application for judicial review by way of order ofcertiorari quashing the decision of the Respondent to grant to the Notice Party retention permission dated 8th August, 2005, (planning registrar reference 05/495) on the grounds that such application was invalid due to non-compliance with the requirements of Article 19 of the Planning and Development Regulations, 2001.

2 On 14th November, 2005, leave was given to the Applicant to apply by way of application for judicial review for the relief set forth at paragraphs D1, D2 and D3 on the grounds set out in paragraphs E1, E8 inclusive in the statement of grounds filed on the 20th September, 2005. The order refers to the statement filed on 25th September, 2005, but it appears from the date of the stamp that it was the 20th September, 2005.

3 At the commencement of the hearing Mr. Paul O'Higgins S.C. on behalf of the Applicant informed the court that he was not proceeding with any claim for damages.

4 It was agreed between the parties that the matter for consideration by the court was a net issue, namely whether or not, in the circumstances arising in this case, the Applicant was obliged to erect a site notice inscribed or printed in indelible ink on a yellow background as provided for in Article 19(4) of the Planning and Development Regulations, 2001.

5 The Applicant is the owner of lands at Rooskagh, Bealnamulia, Athlone, Co. Roscommon. The Notice Party owned lands adjacent to the Applicant. On 13th January, 2005, the Notice Party applied for permission for development comprising the raising of the original ground level of his lands by the importation of excavated material. The planning reference no. for this application was 05/011. The Notice Party also applied for a waste permit in respect of the same activity. Two notices were erected at the site, one underneath the other. One was a site notice in respect of a waste permit application and the second was a site notice in respect of the planning permission. Both were on a white background. The application for permission reference 05/011 was made at the same time as the application for a waste permit.

6 The Applicant objected to the application being brought by the Notice Party and retained the services of Peter Sweetman and Associates to assist him in opposing the application. His agent made a submission together with the appropriate fee in respect of the application. The application is stated to have been made on the 22nd January, 2005, by the Applicant in his affidavit but the stamp from the County Council was received on 20th January, 2004. It is clear that the reference to 2004 cannot be correct. There is a manuscript note at the top of the submission which suggests it may have been received on 13th January, 2005. In my view nothing turns on this. It is clear that at some time in January 2005 the Applicant's agent made a submission and the submission included an allegation that the application was invalid as it did not contain an application for retention. It was pointed out that the site notice was therefore "wrong". On the 8th March, 2005, the Respondent deemed the planning application reference 05/011 to be invalid pursuant to Article 26(3)(b) of the Planning and Development Regulations 2001, on the basis that the contents of the site notice were misleading. The Applicant says that after the declaration of invalidity his agent Mr. Sweetman indicated to him that any subsequent application for permission made within six months of the previous application would require a site notice on a yellow background. The Applicant says he duly maintained a watch over the site but no such notice was erected.

7 It appears that in fact a second notice was erected on the site after the Respondent had declared the first site notice to be invalid. The Applicant failed to notice the erection of a new site notice making an application for retention. This is entirely understandable as the new notice reference 05/495 replaced the earlier notice and above it there remained the site notice for the waste permit. In other words, in the absence of detailed scrutiny, there remained two site notices both on a white background which, for all intents and purposes, looked the same as the position before. As a result of this the Applicant didn't make any submissions or observations in respect of the application 05/495 and in...