Molloy v Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1988 No. 10622P]
• Court: High Court

High Court

[1988 No. 10622P]

Molloy v. Dublin County Council

Catherine Molloy and Noel Walsh

Plaintiffs

and

Dublin County Council

Defendant

Cases mentioned in this report:—

Creedon v. Dublin Corporation [1984] I.R. 428; [1983] I.L.R.M. 339.

Freeney v. Bray U.D.C. [1982] I.L.R.M. 29.

McCabe v. Harding Investments Ltd. [1984] I.L.R.M. 105.

Monaghan U.D.C. v. Alf-A-Bet Promotions [1980] I.L.R.M. 64.

The State (Murphy) v. Dublin County Council [1970] I.R. 253.

Local government - Planning - Development - Application for planning permission - Default permission - Whether failure of planning authority to give applicants notice of decision within relevant period - Whether applicants complied with statutory requirements when making application - Whether failure to comply substantial - De minimis rule - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), arts. 17, 18 (1), 19 (1) and 20 - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-s. 4 (a).

Practice - Declaration - Discretionary remedy - Whether applicants had exhausted all available appeals.

Plenary summons.

By plenary summons issued on the 15th November, 1988, the plaintiffs sought a declaration that a decision to grant outline planning permission to the plaintiffs was deemed to have been given on the 18th September, 1988, pursuant to s. 26, sub-s. 4 (a), of the Local Government (Planning and Development) Act, 1963, and that the defendant's purported refusal to grant permission, dated the 13th September, 1988, was null and void. The matter was heard by the High Court (Blayney J.) on the 20th and 21st July, 1989.

The plaintiffs applied to the defendant planning authority for planning permission in respect of adjoining properties. The address of the first plaintiff was given as the address to which notification of the planning authority's decision should be sent. The second plaintiff was entitled to one of the properties under a will, but the property had not been formally vested in him at the time of the application. The defendant sought additional information in relation to the will and, on the 19th July, 1988, the second plaintiff's sister sent this information to the defendant. On the 14th September, 1988, the defendant refused the permission sought and sent written notice of that decision to the second plaintiff's sister. This refusal was not communicated to the plaintiffs until the 25th September, 1988.

The plaintiffs sought a declaration pursuant to s. 26, sub-s. 4 (a) of the Local Government (Planning and Development) Act, 1963, that the permission sought should be regarded as having been granted in default of a decision of the defendant being notified to the plaintiffs within two months of the appropriate date (i.e. the date on which the additional information was furnished on behalf of the plaintiffs).

The defendant argued, firstly, that the second plaintiff's sister as agent of the plaintiffs, had authority to receive notification of the defendant's decision on their behalf; secondly, that in the circumstances, the defendant ought to have required the plaintiffs to apply for permission to demolish the properties; thirdly, that the court should not exercise its discretion in favour of the plaintiffs as they had not exhausted all avenues of appeal and finally, that the plaintiff's application did not comply with the requirements of the Local Government (Planning and Development) Regulations, 1977.

Held by Blayney J., in granting the declaration sought, 1, that the second plaintiff's sister was not the agent of the plaintiffs nor was she held out to be such and, therefore, the plaintiffs had not received notice of the defendant's decision within the two month period.

2. That the defendant might have required the plaintiffs to take alternative steps in relation to the properties, but, having failed to do so, it could not fault the plaintiffs' application because of its own error.

3. That the court could exercise its discretion in favour of the plaintiffs as, if the plaintiffs were correct, the defendant was to be regarded as having granted planning permission and, therefore, there was no decision against which the plaintiffs could have appealed.

Creedon v. Dublin Corporation [1984] I.R. 428 distinguished.

4. That insofar as the plaintiffs had tailed to comply with the Regulations of 1977, the non-compliance fell within the de minimis rule as the deviation was so trivial and insubstantial that the obligations were substantially complied with.

Monaghan U.D.C. v. Alf-A-Bet Promotions Ltd. [1980] I.L.R.M. 64 applied.

5. That the application of a devisee of property under a will, in occupation and possession of that property, where the executor is obliged to give his consent to the vesting of the property in the devisee, shall not be defeated on the basis that the applicant is not in possession of the freehold since such discrepancy falls within the de minimis rule.

McCabe v. Harding Investments Ltd. [1984] I.L.R.M. 105 followed.

Cur. adv. vult.

Blayney J.

The first plaintiff (to whom I shall refer as Mrs. Molloy) is the registered owner of nos. 2 and 3 Greenhills Road, Walkinstown, County Dublin. The second plaintiff (to whom I shall refer as Mr. Walsh) is entitled to No. 1 Greenhills Road under the will of his mother Kathleen Walsh, the former registered owner, who died on the 12th April, 1978. Nos. 1, 2 and 3 Greenhills Road are three adjoining cottages, nos. 2 and 3 each having approximately one third of an acre of land at the rear.

By an application dated the 17th May, 1988, the plaintiffs applied to the defendant for outline permission for the erection of a filling station on the...