Monaghan U.D.C. v Alf-a-Bet Promotions Ltd

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,Henchy J.,GRIFFIN J.
• Judgment Date: 24 March 1980
• Neutral Citation: 1980 WJSC-SC 1341
• Docket Number: (241-1979)
• Court: Supreme Court
• Date: 24 March 1980

MONAGHAN URBAN DISTRICT COUNCIL v. ALF-A-BET PROMOTIONS LTD.

THE URBAN DISTRICT COUNCIL OF THE URBAN DISTRICT OPMONAGHAN

Applicants/

Respondents

v.

ALF-A-BET PROMOTIONS LIMITED

Respondents/

Appellants

1980 WJSC-SC 1341

O'Higgins C.J.

Henchy J.

Griffin J.

(241-1979)

THE SUPREME COURT

1 JUDGMENT delivered the 24th day of March 1980by O'HIGGINS C.J.

2 In these proceedings the Respondents who are a Planning Authority within the meaning of the Local Government (Planning and Development) Acts 1973to 1976applied under the provisions of Section 27 (1) of the Local Government (Planning and Development) Act 1973for an Order prohibiting the continuance by the Appellants of an unauthorised development. In resisting the application in the High Court the Appellants contended that, in the events which had happened, their application for planning permission or approval was deemed to have been granted in accordance with the provisions of Section 26 (4) of the Act of 1963. This sub-section provides as follows:

3 a "(4)(a) Where -

4 (i) an application is made to a Planning Authority in accordance with permission regulations for permission under this Section or for an approval required by such regulations,

5 (ii) any requirements relating to the application of or made under such regulations are complied with, and

6 (iii) the Planning Authority do not give notice to the applicant of their decision within the appropriate period, a decision by the Planning Authority to grant the permission or approval shall be regarded as having been given on the last day of that period.

7 (b) In paragraph (a) of this sub-section "the appropriateperiod" means

8 (i) In case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the Planning Authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the Planning Authority of the application; within the period of two months beginning on the day on which the notice or notices has or have been complied with,

9 (ii) In case an application is made to the Minister for consent under sub-section (3) of this Section; within the period of seven days beginning on the day of receipt by the Planning Authority of notification of the Minister's decision,

10 (iii) In any other case; within the period of two months beginning on the day of receipt by the Planning Authority of theapplication."

11 The Appellants made the case in the High Court that "the appropriate period" in relation to their application was two months beginning on the day of the receipt by the Respondents of the application and that this period had expired before the making of the Order refusing the application. Accordingly they contended that the use sought to be prohibited was not an unauthorised use and that the Prohibition Order sought under Section 27 of the 1976 Act should be refused. This contention having failed in the High Court, this appeal has been brought.

12 The material facts are as follows: On the 26th April 1977 the Respondents received from the Appellants an application for permission pursuant to the Act of 1963 for the change of user of premises at The Diamond, Monaghan. This application was accompanied by an extract from the Northern Standard, a local newspaper, as proof of compliance with Article 14 of the Local Government (Planning and Development) Regulations 1977. Thisextract was of a notice stating that the Appellants were applying for planning permission to the Monaghan County Council in respect of alterations and improvements at their premises at The Diamond, Monaghan. On the 26th April 1977 the Town Clerk on behalf of the Respondents wrote to the Appellants indicating that they should publish a notice of their intention to apply to the Respondents for planning permission. The letter indicated that the Respondents and not the Monaghan County Council was the proper body to which to apply for planning permission. On the 28th April 1977 the Appellants published the appropriate notice and on the 11th May sent an extract to the Respondents. On the 24th June 1977 the Respondents refused the permission sought and on the 28th June 1977 notice of this refusal was given to the Appellants. In these circumstances if the application received by the Urban District Council on the 26th April 1977 was in order and no notice envisaged by sub-section (4)(b)(iii) of Section 26 of the 1963 Act was served by the Respondents the two-monthperiod would have expired before the Appellants were notified of the refusal - the appropriate dates being the 26th April 1977 and the 26th June 1977. The Appellants" case is to this effect and they submit that as notification of refusal was not given until the 28th April 1977 after the two-month period had expired, subsection (4)(a) of Section 26 of the 1963 Act operated in their favour and a decision to grant permission or approval must be deemed to have been given.

13 The question to be considered is whether the application received by the Respondents on the 26th April was in fact in order. In accordance with sub-section (4)(a) already quoted, this application was required to be "in accordance with permission regulations". These regulations are contained in Part IV of S.I. 65 of 1977. Article 14 of these regulations provides for the publication of the notice. Article 15 provides that this notice shall contain as a heading the name of the city, town or county in which the land or structure is situate and "shall state" other particulars including thenature and extent of the development. It is conceded that the notice published in the Northern Star was not headed as required nor did it contain the particulars required by article 15. Mr. Browne on behalf of the Appellants submitted that these requirements in article 15 were directory merely and not imperative. He relied on the decision of Pringle J. in Dunne Limited v. Dublin County Council 1974 I.R.45. This decision relates to the former regulations and to provisions which differ materially from the requirements of article 15. I do not accept that what is laid down in the regulations which apply in this case can be regarded as directory merely. It seems to me that the wording of article 15 is mandatory and that the requirements set out in the article are imperative. I have, therefore, come to the conclusion that the Applicants failed to make an application to the Planning Authority, the Urban District Council, in accordance with the permission regulations which applied and that accordingly the notice received by the Respondents on the 26th April 1977, not being inaccordance with these regulations was a nullity. In my view, therefore, the contention put forward by the Appellants on this appeal fails and I would dismiss this appeal.

14 Judgment of Henchy J.delivered the 24 March 1980

15 Alf-a-Bet Promotions Ltd. ("the applicants") decided in April 1977 to convert a premises at The Diamond, in the town of Monaghan, into a betting office and amusement arcade. To do this they had to get development permission under the Local Government (Planning and Development) Act, 1963. This entailed compliance not only with the requirements of s. 26 of the 1963 Act but also with the prescribed Regulations (S.I. No. 65 of 1977) - which I shall refer to as "the Regulations". The applicants say that they duly made the necessary application to the relevant planning authority, that they complied with the requirements of the Regulation, and that because Monaghan Urban DistrictCouncil (who are the relevant planning authority) did not give notice to them of their decision on the application within the period of two months, the permission should be deemed to have been granted at the end of that two month period. That is indeed what s. 26(4) of the 1963 Act says may be the effect of a planning authority's silence - but only if the requirements of the Act and the Regulations have been compliedwith.

16 Therein lies the conflict in this case. The applicants, claiming the benefit of the planning authority's silence, have acted on the basis that they have been given the necessary permission. The planning authority, contending to the contrary, that the applicant have engaged in unpermitted development, applied for, and got, in the High Court an order from McMahon J. prohibiting the applicants from continuing their present use of the premises as an amusement arcade. The applicants now appeal from that order.

17 The applicants rest their argument that they have got the necessary permission by default on the followingsequence of events. On the 26 April 1977 they appliedin writing to the planning authority for the required change of use. The application had annexed to it an extract from the NorthernStandard of the 22 April 1977, a local newspaper, as proof of compliance with article 1 of the Regulations, which requires publication of such a notice in a newspaper circulating in the district. That notice was headed "Planning Notice" and merely-stated that Alf-a-Bet Promotions Ltd. were "applying to Monaghan Co. Council for planning permission for alterations and improvements" to premises at The Diamond, Monaghan. The planning authority quickly wrote pointing out that it was they, and not Monaghan Co. Council, who were the relevant planning authority. The applicants thereupon caused a similar notice to be inserted in the Evening Press, but this time directed to Monaghan Urban District Council. We are not concerned with the adequacy of that notice. The case hangs entirely on whether the application, in so far as it depended on the notice published in the Northern Standard, was a valid application which should be deemed to have been granted by default.

18 S. 26(4)(a)(i) of the 1963 Act requires the application to be in accordance with the Regulations. In my...