Kenny Homes & Company Ltd v Galway City and County Manager

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [1991 No. 181 J.R.]
• Court: High Court

High Court

[1991 No. 181 J.R.]

Kenny Homes & Co. Ltd. v. Galway City and County Manager

Kenny Homes and Company Ltd.

Applicant

and

Galway City and County Manager and Galway City Corporation

Respondents

Case mentioned in this report:—

P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701; [1989] I.L.R.M. 565.

Local government - Planning - Development - Outline planning permission - Resolution passed by planning authority directing City Manager to grant outline planning permission -Statutory obligation on planning authority to grant planning permission with or without conditions - Whether terms of resolution precluded local authority from attaching conditions -Whether City Manager entitled to attach conditions to planning permission subsequent to passing of resolution - City and County Management (Amendment) Act, 1955 (No. 12), s. 4 - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-s. 1 (a) and (b).

Local government - Planning - Development - Statutory obligation to have regard to certain matters in deciding whether to grant outline planning permission - Statutory provision enabling local authority to pass resolution directing its County Manager to grant outline planning permission - Whether obliged to consider certain matters before passing such a resolution -Whether obliged to act judicially - Whether County Manager in complying with resolution, exercising an executive function - City and County Management (Amendment) Act, 1955 (No. 12), s. 4 - Local Government (Planning and Development) Act, 1963 (No. 18), s, 26, sub-s. 1 (a) and (b).

Judicial review.

By originating notice of motion dated the 22nd July, 1991, the applicant applied to the High Court for (a) an order of certiorari quashing a decision of the second respondent communicated to the applicant on the 14th June, 1991, not to grant the applicant outline planning permission for the erection of a hotel, filling station, office complex and roads and services for a proposed housing development, and (b) an order of mandamus directing the first responent to give effect to a special resolution passed by the second respondent on the 24th May, 1991.

The application was heard on affidavit. The applicant relied on the affidavits of Mr. John Mooney, a consultant civil engineer, Dr. Brian Meehan, a town planning consultant, and Mr. Padraig McCormack, T.D., a member of Galway City Council. The respondents relied on the affidavits of Seamus Keating, the City and County Manager, Mr. Thomas Kilgariff, the city engineer, and Mr. John Roche, the senior planning executive in Galway Corporation. Mr. Mooney and Mr. Keating were cross-examined on their affidavits.

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

The application was heard by the High Court (Blayney J.) on the 11th February, 1991.

Section 4, sub-s. 1 of the City and County Management (Amendment) Act, 1955, provides "a local authority may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which the local authority or the manager can lawfully do or effect, to have done or effected in performance of the executive functions of the local authority."

Section 26, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, provides inter alia that where an application for planning permission is made to a planning authority the authority may decide to grant the permission or approval subject to or without conditions or to refuse it.

A notice of intention to propose a resolution was served on the second respondent requiring it to pass a resolution pursuant to s. 4 of the Act of 1955 directing the first respondent "to grant outline planning permission to the [applicant]." The resolution was passed. The minutes of the meeting at which the resolution was passed disclosed that the merits of the application for planning permission were discussed in detail. In the course of the meeting the question of attaching certain conditions to the planning permission was considered. The minutes disclosed that some, if not all, of the members in attendance believed that conditions could be attached to the grant of outline planning permission subsequent to the passing of the resolution — either by the second respondent when the application for full planning permission fell to be considered, or by the first respondent pursuant to the powers conferred on him within the terms of the resolution.

The first respondent refused to implement the resolution on the ground that he had been legally advised that it was invalid. Subsequent to this the second respondent informed the applicant that it had decided to refuse to grant the permission sought.

The applicant sought an order of certiorari by way of judicial review quashing the decision of the second respondent to refuse the planning permission sought and an order of mandamus directing the first respondent to implement the resolution.

Held by Blayney J., in refusing to grant the orders sought, 1, that a resolution, if validly and lawfully passed pursuant to s. 4 of the Act of 1955, imposed a duty on the person to whom it was directed to implement it and prohibited him from exercising any separate or independent discretion as to its terms.

• P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 applied.

2. That a local authority, in considering whether or not to pass a resolution pursuant to s. 4 of the Act of 1955 directing the County Manager of its functional area to grant planning permission was obliged to act judicially.

• P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701considered.

3. That a local authority, in considering whether or not to pass a resolution pursuant to s. 4 of the Act of 1955, must have regard to the provisions of s. 26 of the Act of 1963.

• P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701considered.

4. That the second respondent, in considering whether to pass the resolution directing the first respondent to grant outline planning permission, was precluded by the terms of the resolution itself from considering (as was required by s. 26 of the Act of 1963) whether any special conditions should attach to the planning permission; accordingly, it was not entitled to pass the resolution.

• P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701considered.

Cur. adv. vult.

Blayney J.

This is an application by way of judicial review for an order of certiorariquashing a decision of the Galway Corporation (hereinafter referred to as the Corporation) refusing to grant outline permission for a development at Parkmore, Tuam Road, Galway. The applicant seeks also an order ofmandamus directing the Galway City and County Manager (hereinafter referred to as the Manager) to give effect to a special resolution under s. 4 of the City and County Management (Amendment) Act, 1955, passed at a meeting of the Galway City Council held on the 24th May, 1991. This resolution was in the following...