Kerry County Council v Lovett
| Jurisdiction | Ireland |
| Judge | Keane C.J. |
| Judgment Date | 04 June 2003 |
| Neutral Citation | [2003] IESC 37 |
| Docket Number | [S.C. No. 323 of 2002] |
| Court | Supreme Court |
| Date | 04 June 2003 |
[2003] IESC 37
THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
Geoghegan J.
McCracken J.
BETWEEN
AND
Citations:
COURTS OF JUSTICE ACT 1947 S16
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39
LOCAL GOVTT ACT 1991 S45
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(A)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)
COUNTY MANAGEMENT ACT 1940 S16
COUNTY MANAGEMENT ACT 1940 S17
P & F SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 ILRM 565 1989 IR 701
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)
DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD UNREP SUPREME 17.5.1983 1983/2/351
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(1)
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(2)
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(6)
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(8)
CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(9)
LOCAL GOVT ACT 1991 S44
LOCAL GOVT ACT 1991 S44(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(A)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(A)(IV)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(C)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(D)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)(A)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)(A)(II)
KENNY HOMES & CO LTD V GALWAY CITY & CO MANAGER 1995 1 IR 179
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(9)(A)(I)
Synopsis:
PLANNING AND ENVIRONMENTAL LAW
Permission
Resolution of elected members directing county manager to grant permission - Appeal to An Bord Pleanala - Appeal allowed - Time limit - Date of relevant decision - Commencement of period for appealing decision to An Bord Pleanala - Whether resolution of elected members constituted decision to grant permission - Whether appeal to An Bord Pleanala made within time limit - City and County Management (Amendment) Act, 1955, section 4 - Local Government (Planning and Development) Act, 1963, section 26 (323/2002 - Supreme Court - 4/6/2003)
Kerry County Council v Lovett - [2003] 2 IR 589 - [2003] 2 ILRM 434
on the 19th June, 2000 the elected members of the applicant passed a resolution under section 4 of the City and County Management (Amendment) Act, 1955 directing the county manager to grant planning permission to the respondent. The county manager duly made a decision to grant the permission on the 21st July, 2000. The respondent had commenced construction when an appeal against the decision to grant permission was lodged with An Bord Pleanala, which decided to refuse permission for the development in question. The respondent subsequently recommenced construction. The applicant then applied to the Circuit Court pursuant to section 27 of the Local Government (Planning and Development) Act, 1976 for an order prohibiting the continuance of what was then alleged to be an unauthorised development. It was submitted by the respondent that the resolution of the elected members constituted the decision to grant the permission and that accordingly the appeal to An Bord Pleanala was out of time and invalid thereby. It was submitted by the applicant that the period within which an appeal had to be brought began on the day of the decision by the county manager to grant permission and that, accordingly, the appeal was in time and the refusal by An Bord Pleanala was valid. It was further submitted that the respondent was estopped from challenging the validity of the decision of An Bord Pleanala by his failure to judicially review same within two months from the date of its making. The Circuit Court judge requested the opinion of the Court on whether the resolution of the elected members constituted a decision within the meaning of section 26 of the Local Government (Planning and Development) Act, 1963 to grant permission for the development in question and if the answer to that question was in the affirmative whether the respondent's failure to challenge An Bord Pleanala's decision deprived him of the right of asserting that he had valid planning permission.
Held by the Supreme Court in answering the first question posed in the negative that the effect of the passing of a resolution under section 4 of the Act of 1955 was not to vest in the elected members of the applicant the function of deciding to grant permission as, under section 26 of the Act of 1963, that was an executive function vested in the county manager. The passing of the resolution constituted a direction obliging the county manager to make a decision to grant permission for the development in question notwithstanding that such decision was not the result of any adjudicative process, such adjudication having already been carried out by the elected members. That decision was to be distinguished from the grant of permission itself. In the circumstances, it was unnecessary for the Court to answer the second question posed.
JUDGMENT delivered the 4th day of June, 2003, by Keane C.J.
This is a Consultative Case Stated pursuant to S. 16 of the Courts of Justice Act, 1947by His Honour Judge Harvey Kenny, sitting as a judge of the South Western Circuit. It arises out of an application by the Applicant (hereafter "the County Council") under S.27 of the Local Government (Planning and Development) Act 1976, for an order prohibiting the continuance of what was alleged to be an unauthorised development i.e., the erection of a dwelling house, installation of a septic tank and percolation area and creation of a road entrance on a site at Gortrooskagh, Bonane, Kenmare in the County of Kerry.
The facts, as set out in the Case Stated, are as follows. The Respondent applied for permission under S.26 of the Local Government (Planning and Development) Act 1963(hereafter "the 1963 Act") for the development in question on the 11 th November 1999 to the County Council who are the planning authority for the County of Kerry. Further information, plans and particulars were submitted on 28 thJanuary 2000 and on the 29 th May 2000 the Respondent requested the County Council to defer its decision on his application.
On the 19 th June 2000, the elected members of the County Council passed a resolution under S.4 of the City and County Management (Amendment) Act, 1955(hereafter "the 1955 Act") as follows:
"That we, the members for Kerry County Council, hereby direct the County Manager, pursuant to S.4 of [the 1955 Act] and S.39 of the Local Government (Planning and Development) Acts 1963– 1992and the Local Government Act 1991to grant planning permission to (the Respondent) to erect a house in accordance with plans submitted on planning register No. 3198/99."
The minutes of the meeting at which the resolution was passed record that a report was read by the Assistant County Secretary recommending that the application be refused as the proposed dwelling house
"would be visually obtrusive and dominant on the landscape and would create a very bad precedent for further development of this nature."
It also appears from the minutes that the member of the County Council proposing the resolution specified five conditions subject to which the permission should be granted. The motion was carried by 21 votes to none.
On the 21 st July 2000, an Order was signed by the secretary to the County Council, the relevant part of which is as follows:
"By virtue of the provisions of the County Management Acts 1940–1994 IT IS HEREBY ORDERED and decided that in accordance with the resolution of the Council at meeting of 19 th June 2000 under S.4 of [the 1955 Act] as amended by S.45 of the Local Government Act 1991to grant permission under the Local Government (Planning and Development) Acts, 1963–1968"
"to: [the Respondent] Gortrooskagh, Bonane, Kenmare, Co. Kerry"
"in respect of: the erection of a dwelling house, installation of a septic tank and percolation area and creation of a road entrance"
"at: Gortrooskagh, Bonane, Kenmare, Co. Kerry in accordance with the plans and particulars submitted by [Respondent]"
"on: 15/11/99, 28/01/00, 14/02/00, 26/04/00 and on 29/05/00 subject to the following conditions...."
[there follow the conditions as specified by the proposer of the motion at the meeting of the County Council on 19 th June 2000]
"..... AND IT IS HEREBY ORDERED that the said outline permission, subject to the foregoing conditions, shall be deemed to be and is hereby granted in respect of said development unless an appeal is lodged with An Bord Pleanala against the decision to grant said permission within one month of the date of this order."
On the 14 th July 2000, the Respondent served a Commencement Notice, paid the requisite fee to the County Council, and, one week later, commenced construction work on the site. On the 14 thAugust, 2000, the Kerry branch of An Taisce lodged an appeal with An Bord Pleanala against the said decision and on the 19 thAugust 2000 the Respondent was notified by An Bord Pleanala of the lodgment of the appeal by An Taisce.
Following the service of a Warning Notice by the County Council on the Respondent, work ceased on the development in September 2000 and, following correspondence between the Respondent and the County Council, the former applied for permission to retain the existing works and to complete the construction of the house. That application was refused on the 27 th March 2001.
On 13 th March 2001, An Bord Pleanala decided to refuse permission for the development. In June 2001, the Respondent recommenced work on the house, which at the date of the hearing in the Circuit Court, was partially...
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