Littondale Ltd v Wicklow County Council

JurisdictionIreland
CourtHigh Court
JudgeMiss Justice Laffoy
Judgment Date10 July 1996
Neutral Citation1996 WJSC-HC 4018
Date10 July 1996

1996 WJSC-HC 4018

THE HIGH COURT

No. 480 JR/1994
LITTONDALE LTD v. WICKLOW CO COUNCIL
JUDICIAL REVIEW

BETWEEN

LITTONDALE LIMITED
APPLICANT

AND

WICKLOW COUNTY COUNCIL
RESPONDENT
1

Judgment of Miss Justice Laffoy delivered on the 10th day of July 1996

2

This is the Applicant's application for the following reliefs, which it was given leave to apply for by way of judicial review by Order of this Court made by Geoghegan J. on 19th December, 1994:-

3

(a) An Order of Certiorari in respect of the decision of the Respondent to refuse to extend the appropriate period as regards planning permission bearing Register Reference No. 7046/81 (the 1981 permission), which decision was made by order dated the 25th November, 1994;

4

(b) An Order of Mandamus directing the Respondent to re-consider and re-determine the application to extend the appropriate period as regards the 1981 permission.

5

Section 2 of the Local Government (Planning & Development) Act, 1982(the 1982 Act) imposes a limitation on the duration of a planning permission. Section 4 of the 1982 Act contains provisions enabling the duration of a planning permission to be extended. Subsection (1) of Section 4 provides as follows:-

"On an application being made to them in that behalf, a planning authority shall, as regards a particular permission, extend the appropriate period, by such additional period as the authority consider requisite to enable the development to which the permission relates to be completed, if, and only if, each of the following requirements is complied with:"

(a) the application is in accordance with such regulations under this Act as apply to it,

(b) any requirements of; or made under, such regulations are complied with as regards the application, and

(c) the authority are satisfied in relation to the permission that -

(i) the development to which such permission relates commenced before the expiration of the appropriate period sought to be extended, and

(ii) substantial works were carried out pursuant to such permission during such period, and

(iii) the development will be completed within a reasonable time."

6

No appeal lies against a decision of a planning authority to refuse an extension.

7

Part VI of the Local Government (Planning & Development) Regulations, 1994 ( S.I. 86 of 1994) (the 1994 Regulations) contains the regulations applicable to applications under Section 4 of the 1982 Act. Regulation 80 provides that an application under Section 4 shall be made not earlier than one year before the expiration of the appropriate period sought to be extended.

8

The decision of the Respondent which the Applicant seeks to quash in these proceedings was made on foot of an application dated 1st September, 1994 submitted on behalf of the Applicant for an extension of the 1981 permission. The decision of the Respondent on the said application, which was made by order dated 25th November, 1994, was to refuse to extend the 1981 permission for the following reasons:-

9

1. The Respondent was not satisfied that the development to which the permission related lawfully commenced within the appropriate period.

10

2. The Respondent was not satisfied that substantial works were carried out pursuant to the permission during the appropriate period.

11

3. The Respondent was not satisfied that the development would be completed within a reasonable time.

12

The 1981 permission was granted on 31st December, 1981 and, by virtue of the provisions of Section 2 of the 1982 Act, it ceased to have affect on 31st October, 1987. Accordingly, the appropriate period for the purposes of the application of Section 4 of the 1982 Act was the period between 31st December, 1981 and 31st October, 1987.

13

Before addressing the issues raised at the hearing of this application, it is necessary to outline the planning history and the history of the ownership of the land to which the 1981 permission relates over the last quarter of a century. The relevant facts established by the evidence are as follows:-

14

(a) On 27th June, 1972, the Respondent granted to Rockfield Limited a planning permission (the 1972 permission) for the development of land at Ballynacarrig, County Wicklow, which I am satisfied corresponded with the land then registered on Folio 453 of the Register of Freeholders, County Wicklow, by the erection of sixty-four living/bedroom units for use in conjunction with Rockfield House Hotel. The 1972 permission was subject to six conditions. Condition 5 stipulated the Respondent's requirements in relation to the sewage treatment system. Condition 6 stipulated that the bedroom accommodation should at all times remain an integral part of the hotel development and that no such accommodation units should be sold, leased or rented separately to the completed hotel development without the prior written approval of the planning authority.

15

(b) Rockfield Limited partially implemented the 1972 permission prior to a sale in 1981 of part of the lands to which the 1972 permission related, which was ordered by this Court in a mortgage suit. The purchaser on that sale was Arvin Limited, which in June 1981 acquired the lands registered on Folio 453 other than thirteen sites, namely, sites 1 to 12 inclusive and site 20. Subsequently, the lands acquired by Arvin Limited were registered on Folio 7171F of the Register of Freeholders, County Wicklow.

16

(c) The 1981 permission was granted to Gold Beach Limited, which I understand was the corporate vehicle used by Arvin Limited to develop the lands registered on Folio 7171F. The 1981 permission was for -

"Retention of altered site, re-siting of units and retention of miscellaneous changes in development including access roadways, etc. at Rockfield Hotel."

17

The 1981 permission was subject to fifteen conditions, two of which, conditions 4 and 15, were the subject of debate on the hearing of this application. Condition 4 stipulated that no development should be commenced until security for the provision of and satisfactory completion of services should have been given to the Respondent in the form of an approved insurance company bond or the lodgment with the Respondent of a cash sum. The security requirement was to be phased proportionately to any phasing of the implementation of the development. Condition 15 was in similar terms to condition 5 of the 1972 permission. Condition 6 of the 1972 permission was not carried through in the 1981 permission and it is common case that the villas or chalets to be erected pursuant to the 1981 permission could be disposed of to third parties or otherwise dealt with without reference to the Respondent.

18

(d) On the basis of the evidence adduced, it would appear that Gold Beach Limited and Arvin Limited did not set about implementing the 1981 permission until early 1984. An issue then arose between the Respondent and Gold Beach Limited as to the effect of the 1981 permission on the thirteen sites (sites 1 to 12 inclusive and site 20) to which Arvin Limited had not acquired title in 1981 and, in general, as to the validity of the 1981 permission. The Respondent contended that the thirteen sites in question had been developed in contravention of the 1972 permission, in that the sewage treatment system required under condition 5 of that permission had not been installed. The Respondent further contended that the application on foot of which the 1981 permission was granted was misleading, in that it had not disclosed that Gold Beach Limited had no control over the thirteen sites, and that the 1981 permission had been granted on the erroneous assumption that its implementation would rectify the sewage disposal irregularities in relation to the thirteen sites. The Respondent sought a commitment from Gold Beach Limited that the thirteen sites would be connected to the sewage treatment system to be installed by Gold Beach Limited pursuant to the 1981 permission. A dispute then arose between Rockfield Limited, on the one hand, and Gold Beach Limited and Arvin Limited, on the other hand, as to the entitlement of Gold Beach Limited and Arvin Limited to enter onto and carry out works on the thirteen sites. It would appear that this dispute gave rise to no less than three actions in this Court between the two factions. Eventually, all proceedings were stayed by a consent between the two factions, the date of execution of which is not clear but which would appear to have been executed some time before 14th February, 1985, under which Gold Beach Limited and Arvin Limited undertook to connect the thirteen sites to the sewage treatment system to be constructed in accordance with condition 15 of the 1981 permission without cost to the owners of the sites. It is clear from the evidence adduced that the Respondent approved of a sewage treatment system to be installed by Gold Beach Limited in fulfilment of its obligations under condition 15 of the 1981 permission, that the sewage treatment system was installed and that the thirteen sites were connected to it by October 1985. The Respondent, in performance of its functions under the Local Government (Water Pollution) Act, 1977, was subsequently concerned with an application by Arvin Limited for an effluent discharge licence under Section 4 of that Act in relation to the sewage treatment system but the Respondent's functions in this regard were and are entirely distinct from its functions as planning authority.

19

(e) In March 1985, the Respondent accepted a bond in the sum of £25,000 from the Construction Guarantee & General Insurance Company Limited in satisfaction of condition 4 of the 1981 permission in respect of sites Nos. 30 to 35 and 13 to 29 excluding site No. 20.

20

(f) Of the sixty-four sites to which the 1972 permission related, thirty-five were located to the south of Rockfield House Hotel and twenty-nine were located to the north. Prior to...

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