McDOWELL & BRENNAN v ROSCOMMON County COUNCIL

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 396
• Court: High Court
• Docket Number: IEHC 396/[2004]
• Date: 21 December 2004

McDOWELL & BRENNAN v. ROSCOMMON CO COUNCIL

JUDICIAL REVIEW

BETWEEN

MICHAEL MCDOWELL

AND

NIAMH BRENNAN

APPLICANTS

AND

ROSCOMMON COUNTY COUNCIL

RESPONDENT

[2004] IEHC 396

IEHC 396/[2004]

No. 922JR/2004

THE HIGH COURT

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Permission

Refusal to extend duration of permission - Factors to be considered - Statutory interpretation - Whether compliance with permission could be considered - Whether respondent had residual discretion - Whether respondent's decision ultra vires - Whether respondent misconstrued statutory function - Re Thomas Crowley [1964] I.R. 106 followed - Planning and Development Act 2000 (No 30), s 42 - Refusal ultra vires (2004/922JR - Finnegan P - 21/12/2004) [2004] IEHC 396

McDowell v Roscommon County Council

The applicants brought judicial review proceedings in respect of a decision by Roscommon County Council to refuse to grant an extension of three months in respect of a particular planning permission. The planning authority (respondent) decided that the development being constructed was significantly different from that for which permission was granted and therefore an extension of time could not be granted. The respondent contended that notwithstanding the express provisions of the relevant statutory provision (section 42 of the Planning and Development Act, 2000) it had a residual discretion to refuse to grant an extension of permission.

Held by Finnegan P. in making the following order. In deciding whether or not to extend the duration of a planning permission a planning authority was obliged to have regard to the relevant statutory provision and to take into account any other factor was ultra vires. A planning authority had wide powers under other parts of the Planning Acts where it had determined that a development was not being carried out in accordance with the relevant planning permission. It was not the planning authority’s function under section 42 to enquire as to whether the development was in compliance with planning permission and the decision was accordingly ultra vires.

Reporter: R.F.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

PLANNING & DEVELOPMENT ACT 2000 S42

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 40

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 41

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 42

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 43

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 44

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 45

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 46

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 47

PLANNING & DEVELOPMENT ACT 2000 S42(1)(d)

MCCOY, STATE V DUN LAOGHAIRE CORPORATION 1985 ILRM 533

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(c)(iii)

LITTONDALE LTD V WICKLOW CO COUNCIL 1996 2 ILRM 519

PLANNING & DEVELOPMENT ACT 2000 PART VIII

GARDEN VILLAGE CONSTRUCTION CO LTD V WICKLOW CO COUNCIL 1994 3 IR 413

PLANNING & DEVELOPMENT ACT 2000 PART III

CROWLEY, IN RE 1964 IR 106

SOLICITORS ACT 1954 S49(1)

SOLICITORS ACT 1954 S49

SOLICITORS (AMDT) ACT 1960

KENNEDY V LAW SOCIETY OF IRELAND & ORS 2002 2 IR 475

WHITE V DUBLIN CITY COUNCIL 2004 1 IR 545 2004 2 ILRM 509

Finnegan P.

The Facts

1 On the 18th December 1998 Ms Anne McDonagh applied for planning permission in respect of lands owned by her south of Carnadoe Bridge in the townland of Lavagh, Rooskey, Co. Roscommon. Planning permission was granted on the 30th August 1999. The development is described in the planning permission as follows -

"Dwelling house, septic tank and Bord na Mona Puraflo effluent disposal system and new vehicular entrance on to the public road on site south of Carnadoe Bridge, Lavagh townland, Rooskey, Co. Roscommon."

2 Condition 11 attached to the planning permission provides as follows -

"(11) Subject to the foregoing conditions the development, including entrance, shall be carried out in accordance with the elevations and floor plans submitted on the 18th December 1998 and the site layout plan on the 12th July 1999."

The following documents were submitted with the application—

3 1. Site location map.

4 2. Site layout plan.

5 3. Elevations to north, south, east and west.

6 4. Floor plans for levels 1 and 2, 2 and 3, 4 and roof plan.

7 5. Sections A—A showing the east elevation and B—B showing the north elevation.

8 On the 21st April 1999 a revised site layout drawing was submitted with an elevation to the west and a cross section C—C. This latter showed a cross section through the building in a west/east direction. It also shows levels at three points: the level of the public road (140.0D), finished floor level at ground floor (151.0D) and to the rear of the dwelling (154.OD). The cross section C - C conflicts with the form of application for planning permission which gives the finished floor level at first floor level as 8.4 m. above the road. The revised site layout shows the contours of the site and discloses that the site rises steeply from west to east.

9 On the 12th July 1999 a further revised site layout plan was lodged showing a relocation of the Puraflo unit and percolation area but otherwise is identical to that furnished on the 21^st April 1999.

10 The Applicants agreed to purchase the site in April 2004. They retained their own architects Jennings O'Donovan ("the architects"). The purchase was completed on the 25th June 2004. On the 21st May 2004 the architects lodged a commencement notice giving as the commencement date the 8th June 2004 and the proposed completion date 30th August 2004 the date of expiration of the planning permission. (The Respondents consider the expiration of the planning permission to be the 29th August 2004 but nothing turns on this).

11 It is necessary at this point to describe the dwelling for which planning permission was granted. There are three floor levels. At the lowest level there are three bedrooms, four bathrooms and storage areas: having regard to the information furnished to assist in completing the form of application for planning permission this is basement level. At the next level there is the entrance, a living room, dining room, study, conservatory, kitchen and utility area: on the same basis this is the ground floor level. At the upper level there is a bedroom, bathroom and dressing room. In the drawings the finished floor level of the lowest level is level 1, the finished floor level at the next level is level 3 and the finished floor level for the next level is level 4.

12 In applying for planning permission the architects retained by Ms McDonagh were aware of the sensitive nature of the site and in their covering letter to the application they indicated that in their plans they had taken into account the steep nature of the site. The dwelling was to be largely screened by trees. It was designed as split level to integrate into the slope and natural materials were to be used for the external finishes. The finishes were set out in a specification lodged with the application.

13 On the 21st June 2004 the architects wrote to the Respondent as follows -

"I am writing to you in regard to the proposed house with the above planning reference."

14 A contour survey was taken of the site and it indicates that the site is steeper than what was shown on the planning drawings. Therefore, we have taken the finished floor level (which is 8.4m above the adjoining road level) to correspond to the ground floor rather than the basement floor. (See enclosed proposed cross section drawing).

15 This results in the house being more cut into the slope and requiring less fill than was originally indicated on the planning cross section C—C.

16 We hope that this is to your satisfaction and please do not hesitate to contact this office if you have any queries."

17 The approach suggested by the architects is consistent with the information given in the application for planning permission but not with the section C — C in the cross section lodged on the 21^st April 1999. There was no reply to this letter. The Applicants continued with the development in accordance with the letter — that is level 3 (the middle floor level of the three levels) was constructed at a level 8.4 metres above the adjoining road level.

The Application for an Extension of the Planning Permission

18 On the 12th August 2004 the applicants sought an extension of the planning permission. At that date ground works had been completed and the basement slab and retaining walls had been constructed. The dwelling itself is of timber frame construction and at the time of the application all pre production and design tasks had been completed, all materials procured and manufacture had commenced. The prescribed form was duly completed. The period of extension sought was three months from the 30th August 2004. The application was assigned to Frank Flanagan, Assistant Senior Planner for attention on the 17th August 2004 with the request that he deal with the matter prior to the 1st October 2004. Mr. Flanagan inspected the site on the 18th August and thereafter he requested that further information be obtained and a letter dated 25th August 2004 was addressed to the architects in the following terms— "I refer to your recent application in this Planning Authority for extension of duration of the above planning permission reference PD/98/1221.

19 I wish to inform you that there are a number of issues which require clarification in relation to this application which are as follows:-

20 1. Condition No. 11 attached to the planning permission reference PD/98/1221 refers to a site layout plan submitted on the 12th July 1999. There is no record of such a drawing on the file. It cannot, therefore, be established...