McCann v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1995 No. 257 JR]
• Court: High Court

High Court

[1995 No. 257 JR]

McCann v. An Bord Pleanála

Francis Terence McCann

Applicant

and

An Bord Pleanála

Respondent

The County Council of Sligo, Notice Party

Cases mentioned in this report:—

Brady v. Donegal County Council [1989] I.L.R.M. 282.

Dodds v. Walker [1980] 1 W.L.R. 1061; [1980] 2 All E.R. 507, C.A.; [1980] 1 W.L.R. 1441; [1981] 1 W.L.R. 1027; [1981] 2 All E.R. 609.

K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128; [1994] 2 I.L.R.M. 1.

Max Developments Ltd. v. An Bord Pleanála [1994] 2 I.R. 121.

McGuinness v. Armstrong Patents Ltd. [1980] I.R. 289.

Monaghan Urban District Council v. Alf-a-bet Promotions Ltd.[1980] I.L.R.M. 64.

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381; [1982] 2 I.L.R.M. 590.

The State (Elm Developments) v. An Bord Pleanála [1981] I.L.R.M. 108.

Veterinary Council v. Corr [1953] I.R. 12; (1950) 88 I.L.T.R. 145.

Judicial review - Leave to apply - Planning decision - Whether appeal application made within time limit - Meaning of "month" - Interpretation Act, 1937 (No. 38), s. 11 - Local Government (Planing and Development) Act, 1963 (No. 28), s. 26, sub-s. 5 and s. 82, sub-ss. 3A and B - Local Government (Planning and Development) Act, 1992 (No. 14), s. 3 s. 17, sub-s. 1 and s. 19, sub-s. 3.

Notice of motion.

The facts are summarised in the headnote and are set out fully in the judgement of Lavan J. infra.

The applicants sought leave to apply for judicial review. They filed an affidavit and statement of grounds on the 11th October, 1995. The applicants' notice of motion seeking leave to apply for judicial review was heard by the High Court (Lavan J.) on the 18th December, 1995.

Section 11 of the Interpretation Act, 1937, provides inter alia:—

"(11) The following provision shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say . . .

• (h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period"

Section 26, sub-s. 5 of the Local Government (Planning and Development) Act, 1963, as substituted by s. 3 of the Local Government (Planning and Development) Act, 1992, provides inter alia:—

"(a) Any person may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under this section . . .

(f) In paragraph (a) of this subsection 'the appropriate period' means the period of one month beginning on the day of the giving of the decision of the planning authority."

By s. 82 of the Act of 1963, as amended by s. 19, sub-s. 3 of the Act of 1992:—

"(3A) A person shall not question the validity of — . . .

• (b) a decision of the Board on any appeal or on any reference, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as "the Order").

  • (3B)(a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall —

    • (i) be made within the period of two months commencing on the date on which the decision is given, and

    • (ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) . . .

    • and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed."

By s. 17, sub-s. 1 (a) "an appeal received by the Board after the expiration of the appropriate period shall be invalid as not having been made in time."

On the 7th June, 1995, the notice party granted planning permission to the applicant. The applicant subsequently sought to appeal against the imposition of certain planning conditions contained in the said permission and his appeal was received by the respondent on the 7th July, 1995. By letter dated the 25th August, 1995, the applicant was informed that the appeal was inadmissible on the ground that the appeal, having been received on the 7th July, 1995, was out of time by one day. The respondent relied on s. 11 (h) of the Interpretation Act, 1937.

The applicant sought leave to seek judicial review of the respondent's decision on the grounds that the respondent had erred in law in concluding that the period for appealing the decision of Sligo County Council expired on the 6th July, 1995; that the error went to the jurisdiction of the respondent and/or appeared on the face of the record of the respondent's decision; that the rule of law and or statutory interpretation known as the "corresponding date" rule meant that the "appropriate period" as defined by s. 26, sub-s. 5 (f) of the Local Government (Planning and Development) Act, 1963, did not expire until the 7th July, 1995, and therefore the appeal was within the prescribed time. It was also submitted that if the appeal was out of time, the applicant having substantially complied with the aforesaid provision, the respondent had the...