Maguire v Bray Town Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eamon de Valera |
| Judgment Date | 04 June 2010 |
| Neutral Citation | [2010] IEHC 226 |
| Court | High Court |
| Date | 04 June 2010 |
[2010] IEHC 226
THE HIGH COURT
Between
AND
AND
PLANNING & DEVELOPMENT ACT 2000 S34(8)(F)
PLANNING & DEVELOPMENT ACT 2000 S34(8)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)(A)
PLANNING & DEVELOPMENT ACT 2000 S34(8)(A)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 4
MONAGHAN URBAN DISTRICT COUNCIL v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64 1980/7/1341
MOLLOY & WALSH v DUBLIN CO COUNCIL 1990 1 IR 90 1990 ILRM 633
SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007
FLYNN & O'FLAHERTY PROPERTIES LTD v DUBLIN CORP 1997 2 IR 558 1997/3/1001
FREENEY v BRAY URBAN DISTRICT COUNCIL 1982 ILRM 29 1982/5/904
PINE VALLEY DEVELOPMENTS LTD, STATE v DUBLIN CO COUNCIL 1984 IR 407
MCGOVERN v DUBLIN CORP 1999 2 ILRM 314
P & F SHARPE LTD & GROVE DEVELOPMENTS LTD v DUBLIN CITY & COUNTY MANAGER & DUBLIN CO COUNCIL 1989 IR 701 1989 ILRM 565 1988/10/2982
CALOR TEORANTA v SLIGO CO COUNCIL 1991 2 IR 267 1991/11/2646
DUBLIN CO COUNCIL v MARREN 1985 ILRM 593 1985/5/1137
WALSH v KILDARE CO COUNCIL UNREP FINNEGAN 29.7.2009 (EX TEMPORE)
CONLON CONSTRUCTION LTD, STATE v CORK CO COUNCIL UNREP BUTLER 31.7.1975
TENNYSON & ORS v DUN LAOGHAIRE CORP 1991 2 IR 527 1991/13/3390
ROUGHAN & ORS v CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213
MAYE v SLIGO BOROUGH COUNCIL 2007 4 IR 678 2007/39/8174 2007 IEHC 146
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
PLANNING & ENVIRONMENTAL LAW
Default of planning permission
Decision out of time - Notice of decision of respondent - Discretion of court - Conduct of applicant - Proposed development materially contravened relevant development plan - Whether default planning permission should be granted - Whether decision of respondent out of time - Whether necessary to notify decision or merely make decision within statutory time limits- Whether contravention of relevant development plan - Whether contravention material - Whether conduct of applicant relevant in decision -Monaghan UDC v Alf-a-Bet Promotions Ltd [1980] ILRM 64, Pine Valley Developments Ltd v Dublin County Council [1984] IR 407, McGovern v Dublin Corporation [1992] 2 ILRM 314, P&F Sharpe v Dublin County Council [1989] IR 701, Tennyson v Corporation of Dun Laoghaire [1991] 2 IR 527 and Molloy v Dublin Corporations [1990] 1 IR 90 applied; Flynn & O'Flaherty Properties Ltd v Dublin Corporation [1997] 2 IR 558, Freeney v Bray UDC [1982] ILRM 29, Calor Teoranta v Sligo County Council [1991] 2 IR 267, Marran v Dublin County Council [1985] ILRM 593, Walsh v Kildare County Council [2001] IR 483, The State(Conlon Construction Ltd v Cork County Council (Unrep, Butler J, 31/7/1975), Roughan v Clare County Council (Unrep, Barron J, 18/12/1996) and Maye v Sligo Borough Council [2007] IEHC 146 [2007] 4 IR 678 considered - Planning and Development Act 2000 (No. 30) s 34 - Planning and Development Regulations 2001(SI 600/2001) - Local Government (Planning and Development) Act 1963 (No 28) s 26 - Relief refused (2003/397JR - de Valera J - 4/6/2010) [2010] IEHC 226
Maguire v Bray Town Council
Facts: The applicant sought an order quashing a decision of the respondent to refuse planning permission and a declaration that she was entitled to default planning permission. The applicant alleged that the respondent issued a refusal for planning permission on 11 April 2003 but that the decision was made out of time, which had expired on 10 April 2003, such that default planning permission should have been granted to the applicant pursuant to s. 34 Planning and Development Act 2000. The issue arose as to whether the applicant had complied with the permission regulations and whether any infringements on her part were de minimis. The respondent's inspector reports had concluded that the proposed development would have constituted a material contravention of the Bray Development Plan.
Held by De Valera J. that the time limit for the making of a decision by the respondent was 10 April 2003 and the decision was made on 11 April 2003 and was thus out of time. The evidence indicated that the development constituted a material contravention of the Bray Development Plan and default permission could not be granted for the development as a result. An impossible permission could not be rendered possible simply through lapse of time. There were no particularly significant breaches of the planning regulations and minimal deviations would not bar an applicant from an entitlement to judicial review. However, the reliefs sought would be refused and the application dismissed.
Reporter: E.F.
Judgment of Mr. Justice Eamon de Valera, dated the 4th day of June 2010
The applicant is seeking an order quashing a decision of 11 th April, 2003 of the respondent to refuse planning permission for a residential development described in the planning application as "one bungalow and entrance at land fronting Sidmonton Court" at Bray, Co. Wicklow and a declaration that she is entitled to a default planning permission in respect of the application.
The applicant alleges that the respondent issued a refusal of her application for planning permission on 11 th April, 2003 but that the last day for the making of the decision was 10 th April, 2003 and as such the decision was out of time, thus entitling the applicant to a default permission pursuant to the provisions of s. 34(8)(f) of the Planning and Development Act 2000 ("the 2000 Act").
Essentially, the Court has to decide whether the decision of the respondent to refuse the applicant's application for planning permission was made within the eight week period provided for by statute and if not, whether the applicant is entitled to a default planning permission. The kernel of the case advanced on behalf of the respondent is that even if the decision was outside the eight week period, the Court still has a discretion not to grant the relief sought and in all cases where default planning permission is sought, the courts must be slow to grant such relief as the entitlement to default permission is severely circumscribed by statute.
The applicant submitted the planning application to the Town Council on 14 th February, 2003. A number of submissions were received opposing the application within the period prescribed by the Planning and Development Regulations 2001 ("the Regulations"). The respondent was obliged to make a decision on the planning application within eight weeks of the date of it having been received, that is by 10 th April, 2003.
On 11 th April, 2003, the respondent refused planning permission for the proposed development for the following reasons:
"Reason 1: The proposed access across public amenity open space and a pedestrian route from a curved portion of roadway to the site would seriously injure the amenities of the area. The proposed development would, therefore, be contrary to the proper planning and development of the area."
Reason 2: The proposed development by reason of its height and scale would be out of character with the general pattern of development in this area and would seriously injure the visual amenities of the area and would, therefore, be contrary to the proper planning and development of the area." (Emphasis added)
By letter dated 12 th May 2003, from the applicant's solicitors to the respondent Town Council, it was stated that the applicant was entitled to a grant of planning permission by default because a decision on the planning application had not been made within the eight week period. That letter, dated 12 th May, 2003, was outside of the time for an appeal to An Bord Pleanála against the decision of the respondent. On 29 th May 2003, the applicant instituted the within judicial review proceedings and Herbert J. granted leave on 31 st July 2003.
The relevant provisions of s. 34(8) of the 2000 Act, regarding the time limits within which bodies such as the respondent must make their decisions, provide as follows:
(a) Subject to paragraphs (b), (c), (d) and (e), where -
(i) an application is made to a planning authority in accordance with the permission regulations for permission under this section, and
(ii) any requirements of those regulations relating to the application are complied with,
a planning authority shall make its decision on the application within the period of 8 weeks beginning on the date of receipt by the planning authority of the application…
(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period." (Emphasis added)
Here, the respondent submits that it did not "fail to make a decision" with the period specified in the legislation - the decision to refuse planning permission had been made within the permitted eight week period and it was merely the notice of their decision that had not been giving within the eight weeks. That notice was then given one day after the eight week time limit had expired.
The previous statutory provisions dealing with default decisions were contained in s. 26(4)(a) of the Local Government (Planning and Development) Act 1963 (as amended) ("the 1963 Act"), which provided:
"Where -"
(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,
(ii) any requirement relating to the application of or made under such regulations are complied with, and
(iii) the planning authority do not...
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