McGovern v Dublin Corporation

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1999
• Date: 01 January 1999

(H.C.)

McGovern

and

Dublin Corporation

- Default permission - Development plan - Material contravention -Whether proposed development material contravention - Whether development of type normally permissible under terms of development plan - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26 (4).

1. S. 26(4) of the Local Government (Planning and Development) Act, 1963, provides that where a planning authority fails to give notice of its decision on a planning application within the appropriate period (generally two months from the date of the application), a planning permission is deemed to have been given in default. A default planning permission will not arise, however, where the proposed development would represent a material contravention of the development plan. The special procedure prescribed under s. 26(3) of the Local Government (Planning and Development) Act, 1963, must be followed before a planning authority may grant permission in contravention of its plan. The applicant had applied for planning permission for a guest-house comprising 21 bedrooms. There was a dispute as to whether the applicant had properly replied to a request for further information so as to set time running against the respondent local authority. A preliminary issue arose, however, as to whether default permission could ever issue in respect of the proposed development. Under the relevant development plan, guest-houses with no more than 19 bedrooms, although designated as 'open for consideration', did not come within the list of 'normally permissible' development. The applicant argued that the proposed development did not, however, constitute a material contravention of the plan and sought an order of mandamus directing the local authority to grant planning permission. Held by Barr J. in refusing the relief sought: (1) The statutory right to a default permission...