Maher v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 2397
• Court: High Court
• Docket Number: [1991 No. 202 JR]
• Date: 01 January 1993

1992 WJSC-HC 2397

THE HIGH COURT

No. 202/1991

MAHER v. BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

PAUL MAHER

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1990

LOCAL GOVT (PLANNING & DEVELOPMENT)(FEES)(AMDT) REGS 1989 SI 338/1989 ART 6

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1) PARA I(iii)

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S10(3) PARA (b)(ii)

Synopsis:

PLANNING

Development

Permissions - Appeals - Fees - Payment - Blank cheque - Two appeals - Cheque completed by payee for single appeal fee - Cross-appeal lodged one day late - Whether parties treated equally - Local Government (Planning and Development) Act, 1963, s. 56 - Local Government (Planning and Development) Act, 1982, s. 10 - (1991/202 JR - Blayney J. - 10/4/92) - [1993] 1 I.R. 439

|Maher v. An Bord Pleanala|

NEGOTIABLE INSTRUMENTS

Cheque

Amount - Blank - Payee - Authority - Drawer's intention - Payment of two fees - Amount of one fee inserted by payee - Whether both fees paid - (1991/202 JR - Blayney J. - 10/4/92) - [1993] 1 I.R. 439

|Maher v. An Bord Pleanala|

WORDS AND PHRASES

"Received by the Board"

Planning - Permissions - Grant - Appeals - Appeal fees - Blank cheque - Single fee entered by payee - Whether both fees received by payee - (1991/202 JR - Blayney J. - 10/4/92) - [1993] 1 I.R.439

|Maher v. An Bord Pleanala|

1 Judgment of Mr. Justice Blayney delivered the 10th day of April 1992.

2 The Applicant is the owner of a site consisting of part of the rear gardens of Nos. 394, 395 and 396 Clontarf Road, Dublin 3. He is a Building Contractor and applied for and obtained from Dublin Corporation two separate planning permissions to build 3 three bed mews houses on the site. Notification of the decision to grant the permissions was given on the 4th October 1990.

3 The Clontarf Residents" Association, which is a Notice Party in this case, had objected to the Applicant's application for planning permission and on the 25th October 1990 lodged with the Respondent an appeal against both permissions. On the 8th November 1990 the Applicant, through his Architects, appealed against some of the conditions in one of the planning permissions but this appeal was rejected by the Respondent on the ground that it was received one day late.

4 The Respondent gave its decision on the appeal of the Clontarf Residents" Association on the 25th June 1991 and refused permission for the development for which the Applicant had obtained the two separate permissions from Dublin Corporation. The reason for the refusal in each case was the same and was as follows:-

"The proposed development comprises the contruction of 3 three storey houses located in the back gardens of Nos. 394, 395 and 396 Clontarf Road but set back some distace from the laneway adjoining the back boundary of these gardens. The proposed development, having regard to its location, layout and height in relation to adjoining nearby property, would detract from the visual amenities of this area and depreciate the value of property in the vicinity."

5 On the 21st August 1991 the Applicant applied for and was granted leave to apply for an Order of Certiorari by way of application for Judicial Review quashing the decisions made by the Respondent on the 25th day of June 1991 whereby the Respondent purported to refuse permission for the constuction of 3 three storey houses located in the back gardens of Nos. 394, 395 and 396 Clontarf Road, Dublin 3. The grounds upon which the Applicant was given leave were as follows:-

6 2 "(1) The Respondent erred in fact and in law in refusing the said applications for planning permission

7 (a) by failing to consider the matter on its merits

8 (b) by entertaining a Third Party appeals which were not accompanied by the specified fee and which were out of time

9 (c) by deciding the matter on the basis of an alleged depreciation in value of property in the vicinity in the absence of any or any proper evidence to support this

10 (d) by applying inconsistent and contradictory criteria in deciding essentially similar applications in essentially similar circumstances by essentially similar applicants in relation to the visual amenity of the area

11 (e) by having regard to matters not relevant to the proper planning and development of the area i.e. the likely depreciation in the value of property in the vicinity.

12 (2) The Respondent acted unfairly in refusing to entertain the Applicant's further appeals on a number of small points relating to the applications for planning permission on the basis that it was out of time by one day although accompanied by the appropriate fee and yet entertained appeals by Third Parties which were not accompanied by the required fee and when those fee were proffered the submission was by the passage of time out of time."

13 While the Applicant was given leave to ground the application on all these matters, Counsel for the Applicant relied principally on the ground that the Respondent had entertained appeals from the Clontarf Residents" Association which were not accompanied by the specified fee and which were out of time.

14 The fcts on the basis of which this submission was made were not in dispute and were as follows:-

15 On the 25th October 1990, which was the last day on which the Clontarf Residents" Association could appeal against the two permissions granted by Dublin Corporation, Mrs. Deirdre Tobin, the Secretary of the Association, sent her son Richard Tobin, Junior, to the Respondent's Office to lodge two appeals. He had with him two letters in identical form except that one of them was headed "Re Planning Application No. 1793/90, 394–6 Clontarf Road, Dublin 3" and the other was headed "Re Planning Application No. 1794/90, 394–6 Clontarf Road, Dublin 3". Each letter was addressed to the Secretary of the Respondent and the text of the letter was as follows:-

"Dear Sir,"

16 On behalf of many of our members on both Clontarf Road and Dollymount Avenue we wish to object to the granting of permission in this case. Some of our grounds for objecting are as follows:-

17 Traffic density, services and value of properties adjoining site.

18 We will submit our objections in greater detail in the near future.

19 I enclose herewith our cheque for £50.

20 Yours faithfully,

21 Mrs. Tobin's son had with him also a blank cheque dated the 21st October 1990 made out in favour of the Respondent, drawn on the Residents" Association's account in the Bank of Ireland and signed by Mrs. Tobin and by the Treasurer of the Association. The Respondent issued a receipt for the cheque in the following form.

"An Bord Pleanala

22 Initial receipt for item received by hand.

23 Received from Deirdre Tobin Clontarf Res. Assoc. of 35 Castle Avenue, Clontarf, Dublin 3 the sum of £ blank cheque in respect of fee for appeal.

24 Signed

25 On the 2nd November 1990 the Respondent wrote to the Clontarf Residents" Association in regard to one of the appeals, that bearing the Planning Authority Registration Reference 1794/90. The letter was in the following terms:-

"Planning Authority Decision Re Proposed Development at 394 395 and 396 Clontarf Road Dublin 3."

26 Dear Sir/Madam,

27 An Bord Pleanala has received your letter dated the 20th October 90 appealing under the Local Government (Planning and Development) Acts 1963to 1990against the above mentioned decision.

28 Article 6 of the Local Government (Planning and Development) (Fees) (Amendment) Regulations 1989 provides that a fee of £50 should be lodged with the Board by an Appellant with his appeal. Your letter was not accompanied by a fee and cannot therefore be regarded as a valid appeal.

29 Yours faithfully,

30 On receipt of that letter Mrs. Tobin wrote to the Respondent on the 16th November 1990 setting out the manner in which the appeal had been lodged. It is not necessary to set out the entire letter. The relevant part was as follows:-

"The position is that our messenger attended at the Bord Pleanala Offices at Irish Life Centre on 25th October 1990. A messenger handed in objections in relation to the two planning applications, namely 1793/90 and 1794/90 and I enclose herewith copies of such objections for your information. The objections were stapled together and attached to one cheque No. 27 drawn on the account of Clontarf Residents" Association. The cheque was made out in blank and receipted as such by your official. I enclose herewith a copy of the said receipt for your information. The young messenger who attended with all of the necessary paper work took the receipt on the basis that all of the statutory requirements had been complied with.

It is clear from the furnishing of the two planning objections together with a reference to payment in the sum of £50 on each objection on the face of the correspondence that the intention was that the...