Murphy and Another v Wicklow County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] IEHC 147 |
| Docket Number | Record No. 2016/952JR |
| Court | High Court |
| Date | 21 March 2018 |
[2018] IEHC 147
THE HIGH COURT
Barrett J.
Record No. 2016/952JR
and
Planning & Development – Art. 33(3) of the Planning and Development Regulations 2001-2015 – Order of certiorari – Retention permission – Elapse of time for furnishing information
Facts: The applicants sought an order of certiorari, by way of judicial review, for quashing an order made by the respondent/Council in pursuant to art. 33(3) of the Planning and Development Regulations 2001-2015. The applicants also sought an order for remitting the applicants' application for planning permission to the respondent. The applicants contended that they had furnished the information requested by the Council in the requested manner in the context of the retention process. The respondent objected that there was breach of planning conditions and that the applicants had failed to provide the requested information even after being warned three times by the respondent.
Mr. Justice Max Barrett refused to grant the reliefs sought by the applicants. The Court found that the applicants did not provide the requested information within the required timeframe and there was complete non- compliance on the part of the applicants.
The applicants come to court seeking, inter alia, an order of certiorari setting aside an order made by the respondent on 21st October, 2016, pursuant to Art. 33(3) of the Planning and Development Regulations 2001-2015. That order declares an application for retention permission (ref. 15/1065) to be withdrawn because a period of six months elapsed following a further information request of 4th April, 2016, without reply being received. The applicants maintain that the said information request was responded to in a timely manner.
Pursuant to planning application (ref. 03/8050), the applicants applied to the respondent council for planning permission for, inter alia, a bungalow and domestic garage on their lands at Baltinglass, Co Wicklow. When it came to the proposed garage, it (at 114m2) was considered to be excessive in size and other than ancillary to the main dwelling. So the applicants were invited to submit a revised proposal for a garage no greater than 50m2 in size. Subsequently, the applicants responded to the said request for further information and, inter alia, submitted revised plans for a garage of 40m2 in size. Planning permission was granted in January 2004, subject to various conditions. Among these conditions was the following condition (Condition 2(a)):
‘The use of the proposed dwelling shall be restricted to the applicant or to other persons primarily employed or engaged in agriculture in the vicinity or to other such class of persons as the Planning Authority may agree to in writing. This requirement shall be embodied by a legal undertaking that shall be registered as a burden against the title of the land in the Land Registry or Registry of Deeds and shall be of ten years' duration from the date of this registration. Evidence of this registration shall be submitted to the Planning Authority within twelve months of the commencement of development on the site.’
The court notes in passing that it is obvious from the wording of this condition that what was to be provided to the Council within the 12-month timeframe was evidence of the fact that registration had been completed.
For some years no inspection of the property, that was the subject of the above-referenced permission, was carried out by the Council to ensure that the applicants had honoured the terms of the permission. However, in circumstances where the financial contribution required under the permission had not been paid, a letter was sent in this regard to the applicants on 13th November, 2012. There was no response to this letter; however, a decision was made by the Council that before enforcement proceedings were commenced, an inspection should be carried out in order to ascertain whether any outstanding issues should be included in the enforcement proceedings. The inspection was duly carried out by Ms. Lucy Roche (Assistant Planner) on 21st March, 2013, during which she identified what she considered to be a number of breaches of the applicable planning conditions. Thereafter, a warning letter was sent in relation to each of the said perceived breaches.
During the course of 2013, various submissions were made to the Council (by Mr Vincent Cronin, a planning and design consultant) for the respondents. As a result of these submissions the Council was able to satisfy itself that a number of the outstanding conditions had been satisfied. Also during 2013, an application for retention (ref. no. 13/8612) was made. However, that application was not in accordance with the planning code and accordingly could not be considered. This was duly communicated to the applicants.
Because there continued to be non-compliance with a number of conditions, a fresh warning letter was sent to the applicants in October 2013. While Mr Cronin subsequently indicated that he had been instructed by the applicants to prepare a planning application to address the alleged unauthorised development, no such application had been lodged by the time Ms. Roche carried out a further inspection on 12th December, 2013, following which she recommended that an enforcement notice be sent.
Another application for planning permission (bearing ref. no. 14/1043) was purportedly made in January 2014. Again, however, this application was not made in accordance with the planning code and could not be considered by the Council. This was duly communicated to the applicants.
On 8th May, 2014, the Council wrote to the applicants warning that proceedings would issue by reason of non-compliance with the enforcement notice. Following the issuance of this notice, Mr Murphy placed a telephone call with the Council. Arising from the substance of this telephone call, and following a further review of the enforcement notice, the Council took the view that the enforcement notice as previously issued did not adequately address the full extent of the unauthorised development on-site. Consequently a fresh enforcement notice (with explanatory letter) dated 14th July, 2014, issued from the Council to the applicants.
When Ms. Roche carried out a further inspection on 28th August, 2014, it was noted that the issues of non-compliance raised in the warning letter of 14th July, 2014, had not been addressed. In addition, it was noted that the applicants had recently constructed a new detached timber structure to the north-east corner of the site, without any planning permission having been granted for same. Accordingly, yet another warning letter was sent to the applicants dated 1st September, 2014.
Following further site inspections in October and November 2014, Ms. Roche recommended the issue of a fresh enforcement notice to the applicants in respect of certain of perceived breaches of the planning conditions aforesaid and the construction of the timber structure aforesaid.
By letter dated 8th December, 2014, Mr Murphy claimed that the house and garage had been constructed well in excess of the 7-year period required for enforcement proceedings and that he was not aware that the timber structure required planning permission. He also proposed that he pay a standing order of €40 monthly in respect of planning fees; the Council by letter of 18th December, 2014, very reasonably accepted this proposal. By letter of 9th January, 2015, the Council issued a further letter addressing various points raised by Mr Murphy; it is not necessary to recount the substance of that letter.
In the enforcement proceedings, the Council will, the court understands, be alleging, inter alia, that: (i) the ridge height of the dwelling-house is 56cm higher than it should be; (ii) the dwelling-house contains first-floor accommodation when it was intended as a bungalow; (iii) instead of a house with a floor space of 275m2, the applicants have constructed a house with a floor space of 467m2; (iv) the ridge height of the garage is 192cm higher than it should be; (v) instead of a garage with a floor space of 40m2, the applicants have constructed a garage with a floor space of 108m2; (vi) a timber shed has been constructed for which planning permission is required but no such permission has been obtained.
The enforcement proceedings were initially listed for hearing by the District Court on 3rd September, 2015, but were adjourned in circumstances in which it was understood that the applicants were going to submit a fresh retention permission application in relation to the garage, house and shed. In October 2015, the retention application was made. Of some significance as regards the within application is the fact that in the retention application materials, Mr Cronin is expressly identified by the applicants, at their election, as the party acting for the applicants for the retention permission:
Name Vincent Cronin
Address MUST be supplied at the end of this form. (Question 25)
’
The page showing Question 25 has not been exhibited before the court but it does not appear to be disputed that the address was provided; this must be so as there are several letters exhibited before the court in which the Council writes to Mr Cronin at a given address and there is no suggestion that this was a wrong address.
The effect of the foregoing is that when it came to the retention side of matters, the applicants wanted the Council to deal with their agent; and obviously they wanted their agent to deal with the Council. That agent was Mr...
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