Micaud Investment Management Ltd v an Bord Pleanála
|Ms. Justice Faherty
|31 July 2018
| IEHC 588
|[2016 No. 503 J.R.]
|31 July 2018
 IEHC 588
THE HIGH COURT
[2016 No. 503 J.R.]
Judicial review – Planning and development – Acknowledgment – Applicant seeking to appeal to the respondent, against the decision of the notice party – Whether it was lawful for the respondent to reject the applicant's appeal
Facts: The first notice party, Cork County Council, on 7th April, 2016, refused the application of the second notice party, Mr Holland, for retention planning permission. On 3rd May, 2016, the applicant, Micaud Investment Management Ltd, submitted an appeal to the respondent, An Bord Pleanála, under s. 37(1)(a) of the Planning and Development Act 2000 against the decision of the Council. The Board rejected the appeal on the basis that Micaud did not include with its appeal an acknowledgement as required by s. 127(1)(e) of the 2000 Act. On 18th July, 2016, the High Court (Humphreys J) granted leave to Micaud to seek, inter alia: (i) an order of certiorari, by way of judicial review, quashing the Board's decision; (ii) a declaration, by way of judicial review, that the Board's decision was invalid and of no effect; and (iii) an order remitting the matter to the Board and requiring the Board to validate the appeal. The applicant submitted that: (i) in making its decision to invalidate the applicant's appeal the Board erred in law and/or in fact in circumstances where the Council had had regard to Micaud's letter of 11th December, 2015; (ii) the letter dated 11th December, 2015 from the applicant to the Council fell within the scope of s. 34(3) (a) of the 2000 Act; (iii) in those circumstances, in reaching its decision on the validity of the appeal, the Board erred in law and in fact in finding that the appeal was an appeal to which the requirements of s. 127(1)(e) of the 2000 Act applied; (iv) further and or in the alternative, in reaching its decision on the validity of the appeal, the Board failed to take into account relevant considerations; (v) in particular, the Board failed to take into account the transfer of the proprietary interests of the original applicant for permission (Mr Holland) in respect of the dwelling to the applicant as Mortgagee in Possession; (vi) further and/or in the alternative, the Board acted irrationally in deciding the appeal was invalid in circumstances where the evidence before the Board was that the proprietary interests of Mr Holland had been transferred to the applicant; (vii) further and/or in the alternative, the Board acted in breach of fair procedures and the rules of natural constitutional justice; (viii) in particular, the Board breached fair procedures and the rules of natural and constitutional justice in invalidating the appeal in circumstances where the applicant had effectively been denied the right to appeal against a decision of the Board regarding a dwelling in respect of which the proprietary interests had been transferred from the original planning applicant to the applicant during the course of the planning application process.
Held by Faherty J that, in all of the circumstances of the case, the grounds of challenge had not been made out.
Faherty J held that the relief sought in the notice of motion would be denied.
The within judicial review proceedings concern a net issue, namely, was it lawful for the respondent (hereinafter 'the Board') to reject the applicant's (hereinafter 'Micaud' or 'the applicant') appeal on the basis that Micaud did not include with its appeal an acknowledgement as required by s. 127(1)(e) of the Planning and Development Act 2000 (as amended) ('the 2000 Act')?
On 11th February, 2013, the second named notice party, Mr. Holland, submitted a planning application to the planning department of Cork County Council, the first named notice party, ('hereinafter the Council') for permission for the development of a two-story dwelling house, septic tank, percolation area and access road at Monalahy, Newcastle, Blarney, Co. Cork. The planning application was later supplemented by details of Mr. Holland's housing need.
On 4th April, 2013, the Council requested further information from Mr. Holland, in particular, in relation to his housing need. A response to the request for further information was submitted on 18th November, 2013. The Council made a further request for clarification as regards the housing need on 11th December, 2013 and this was responded to on 16th December, 2013. On 21st January, 2014, the Council decided to grant planning permission to Mr. Holland subject to a number of conditions.
In circumstances where there was no appeal in respect of the decision, a grant of permission issued on 26th February, 2014, subject to a number of conditions including that the proposed dwelling when completed would be occupied as a place of permanent residence by Mr. Holland or members of his family or their heirs, with the provision that the condition did not affect the sale of the dwelling by a mortgagee in possession or any person deriving title from such sale.
On 11th March, 2014, Mr. Holland entered into a loan agreement with Micaud whereby Micaud agreed to make available to Mr. Holland a loan of up to €300,000 to finance the construction of the dwelling in respect of which he had been granted planning permission. It was agreed that the loan would be secured by a mortgage over the said dwelling and that the loan would be repayable on demand by the lender at any time. Also on 11th March, 2014, Mr. Holland entered into a mortgage agreement with Micaud whereby a first fixed charged was created over the dwelling, the subject matter of the grant of planning permission, as security for the monies due and owning under the loan agreement.
By letter dated 20th March, 2015, Mr. Holland, in accordance with condition No. 2 of the planning permission, submitted to the Council a written statement of confirmation of the first occupation of the dwelling.
On 10th April, 2015, on behalf of Mr. Holland, O'Keefe O'Connell Architects (hereinafter O'Keefe O'Connell) lodged an application for retention planning permission in respect of the dwelling which was the subject of the planning permission previously obtained. The application was for the retention and completion of a two storey dwelling incorporating a basement and car port and amendments to the site layout including the septic tank and percolation area as previously permitted.
On 14th May, 2015, the Council received observations from the third named notice party herein, Mr. Buckley, in respect of the application for retention permission.
The Council wrote to Mr. Holland via O'Keefe O'Connell on 3rd June, 2015, requesting further information from him, and by letter dated 30th November, 2015, it extended the timeframe for reply to its request for further information to 11th March, 2016.
It appears that on or about 7th December, 2015, Mr. Holland informed Micaud that he could no longer make repayments on the mortgage and, thereafter, Micaud took steps to take over the constructed premises and secure same.
By letter dated 11th December, 2015, Micaud wrote to the Council to advise that it held a mortgage over the property in respect of which planning permission had been granted and advising that it had taken possession of the property as Mortgagee in Possession. It referred to the retention application that had been lodged in respect of the property and expressed its intention to engage the services of O'Keefe O'Connell to finalise the matter.
The applicant's letter was received by the Council on 22nd December, 2015. The Council deemed the correspondence 'Unsolicited FI (22/12/2015)' (Unsolicited Further Information). It is common case that neither Micaud nor O'Keeffe O'Connell received an acknowledgement from the Council of receipt of the letter of 11th December, 2015.
On 10th March, 2016, O'Keeffe O'Connell submitted a response to the Council's previous request for further information which had issued to Mr. Holland. The response outlined that condition No. 2, as attached to the planning permission, was subject to the proviso that the condition shall not affect the sale of the dwelling by a mortgagee in possession or by any person deriving title from such a sale. The response also advised that as mortgagee in possession, Micaud wished to regularise the planning situation.
The Planner's Report, dated 4th April, 2016, recommended refusal of the retention application. It recited O'Keeffe O'Connell's response of 10th March, 2016, to the Council's request for further information and noted that unsolicited further information had been received on 22nd December, 2015. It goes on to state:-
'This planning application was received by the Planning Authority on the 10.04. 2015 and the name of the applicant on the planning file, public notices, etc is Michael Holland.
It has not been set out when exactly the 'mortgagee in possession' took possession of the property. The response is inconclusive and not satisfactory. There are no details as to who is residing in the property. The site is located in an area where the applicants have to demonstrate a genuine rural housing need.
This application site is located in a rural area, and it is within the rural area under strong urban influence as set out in the Cork County Development Plan 2014.
Permission is being sought in the name of Michael Holland for retention and completion of two-storey dwelling house and basement, car port and amendments to site layout including sceptic tank previously permitted...
There is a long planning history associated with the site, with refusal of planning permissions to applicants...
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