Murphy v Cobh Town Council and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 26 October 2006
• Neutral Citation: [2006] IEHC 324
• Court: High Court
• Docket Number: [No. 309 J.R./2005]
• Date: 26 October 2006

MURPHY v COBH TOWN COUNCIL & BORD PLEANALA

BETWEEN

MARGARET MURPHY

APPLICANT

AND

COBH TOWN COUNCIL AND AN BORD PLEANÁLA

RESPONDENTS

AND

COBH MARINA DEVELOPMENTS LIMITED AND CHRISTOPHER GRIFFIN

NOTICE PARTIES

[2006] IEHC 324

[No. 309 J.R./2005]

THE HIGH COURT

Abstract:

Planning & Environmental law - Judicial Review - Certiorari - Failure to give acknowledgement - Formal requirements - Substantial Compliance - De minimis rule - Locus standi - Whether decision of Board to reject appeal submitted by group valid - Planning & Development Act 2000, s. 127(1)(e)

: The applicant sought to quash the decision of the Board to reject an appeal submitted by an Action Group as it had not been accompanied by an appropriate acknowledgment in accordance with s. 127(1)(e) of the Planning and Development Act 2000. The Board contended that the first letter acknowledging the observations of the group was the acknowledgement that should have accompanied the appeal and not a later letter. The applicant contended that the document required by s. 127 was any document and not a particular type of document. The standing of the applicant was raised, the applicant no longer being a member of the Action Group.

Held by MacMenamin J. that the objection of the Board was essentially technical and compliance here had been otherwise substantial. The de minimis rule was applicable here. To re-address locus standi at the substantive hearing when leave had already been granted to the applicant would be contrary to the legislative intention.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S127(1)(e)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 31

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 69

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT ACT 2000 S37(1)(a)

PLANNING & DEVELOPMENT ACT 2000 S127

PLANNING & DEVELOPMENT ACT 2000 S144

PLANNING & DEVELOPMENT ACT 2000 S127(4)

PLANNING & DEVELOPMENT ACT 2000 S127(2)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

ELM DEVELOPMENTS, STATE v BORD PLEANALA 1981 ILRM 108

PLANNING & DEVELOPMENT ACT 2000 S127(1)

PLANNING & DEVELOPMENT ACT 2000 S127(2)

PLANNING & DEVELOPMENT ACT 2000 S32(2)(d)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(2)

PLANNING & DEVELOPMENT ACT 2000 S127(1)(f)

PLANNING & DEVELOPMENT ACT 2000 S127(1)(g)

MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

HOWARD v COMMISSIONER FOR PUBLIC WORKS 1993 ILRM 665

TELECOM EIREANN v O'GRADY 1998 3 IR 432

GRAVES v AN BORD PLEANALA 1997 2 IR 205

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S17(1)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(5)(b)

NI CHONGHAILE v GALWAY CO COUNCIL 2004 4 IR 138

MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

MCCANN v AN BORD PLEANALA 1997 1 IR 264 1997 1 ILRM 314

ROWAN v AN BORD PLEANALA UNREP FEENEY 26.5.2006

PLANNING & DEVELOPMENT ACT 2000 S50

CHAMBERS v AN BORD PLEANALA 1992 1 IR 134

LANCEFORT v AN BORD PLEANALA (NO 2) 1999 2 IR 311

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

PLANNING & DEVELOPMENT ACT 2000 S54(b)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

PLANNING & DEVELOPMENT ACT 2000 S50(5)

BALLINTUBBER HEIGHTS LTD v CORK CORPORATION UNREP O CAOIMH 21.6.2002 2003/5/898

HARRINGTON v AN BORD PLEANALA UNREP MACKEN 26.7.2005 2005/29/5927

O'SHEA v KERRY CO COUNCIL 2003 4 IR 143

RYANAIR v AER RIANTA 2004 2 IR 344

O'BRIEN v DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006/44/9478

HARDING v CORK CO COUNCIL UNREP CLARKE 12.10.2006 2006/28/5912

Mr. Justice John MacMenamin

1 On 10th October, 2005 having heard an application for leave on notice, O'Sullivan J. granted the applicants liberty to seek judicial reviewinter alia for an order of certiorari to quash the decision of the second named respondents ("the Board") to reject an appeal submitted on behalf of the members of the Holy Ground and Environs Action Group (hereinafter the "Action Group") upon the basis that it had not been accompanied by an appropriate acknowledgement in accordance with s. 127(1)(e) of the Planning and Development Act, 2000.

2 The appeal rejected by the Board, was submitted by the Action Group's committee on behalf of its members. It concerned a second application for a planning permission for mixed use residential and commercial development at Connolly Street Cobh Co. Cork. This development, in the area well known as “The Holy Ground”; was an extensive one. It consisted of a marina, 150 apartments in blocks of two and three storeys, a six storey apartment building, commercial units, and a car park. The members of the Action Group who reside in Cobh, object on the basis of the impact of this development on the environment of the area, a risk of landslides, ecological aspects and alleged destruction of views of Cobh Harbour from a number of different vantage points.

3 The applicant in these proceedings lives with her parents in close proximity to the location of the intended development. She has been a member of the Action Group since 2001 when the first application for planning permission for a similar development was submitted. That application for was refused on appeal by the Board. The reasons therefor closely to correspond with a number of the present objections.

4 The Action Group Committee, on behalf of its members, lodged an objection to the second application for planning permission for the proposed development with the first respondent (the “Town Council”). This was dated 29th November, 2004. The Town Council wrote to the Action Group by letter dated 30th November, 2004.

5 The first lines of the letter state:

"A Chara,

I acknowledge receipt ofyour communication regarding the following application for Permission under the Planning and Development Act, 2000: …"

6 The date of receipt of the communication was recorded by date stamp. The letter recites details of the applicant for permission, the nature of the proposal, and the site. The words in italics refer to the objection aforesaid.

7 The letterinter alia states:

"Your communication was received in this office on 29/11/2004. Receipt No. 31033 in respect of €20 fee paid as attached."

8 The letter was signed (in large typeface) by Mr. Padraig Lynch. Beneath this in ordinary script, is Mr. Lynch's description as Town Clerk of Cobh Town Council. Below, in what can only be described as minuscule print, is the date of the letter, “30/11/2004”. No date was placed at the head of the letter, nor elsewhere in ordinary sized font. Accompanying that letter was the receipt.

9 The Town Council subsequently decided to grant planning permission for this development. By a further letter (using similar unusual dating procedure and font size) the Town Clerk informed the Action Group that the Town Council had by order dated 16th of December, 2004 decided to grant permission. That letter contained an identical description of the nature of the proposal, and also enclosed a copy of the notification of the decision of the Town Council which had been sent to the applicant for planning permission. The Action Group were advised to note the requirement of any appeal to An Bord Pleanála. This letter of 17th December, 2004, was written in fulfilment of a requirement upon the Town Council of Article 31 of the Planning and Development Regulations 2001 to notify those who made a submission or observation upon the application. This time the letter commenced with the words:

"I refer to previous correspondence regarding the application for Permission …"

10 A third party appeal was lodged with the Board it is required to inform the Town Council, who were in turn required by Article 69 of the Planning and Development Regulations 2001, to inform those who made submissions or observations. This was done by further letter from the Town Council on 11th January, 2005 and received by the Action Group. This time it commenced:

"I acknowledge receipt of your communication regarding the following application for Permission …",

11 described the development the subject matter of the planning application (04/ 52053) and on the following pages indicated that the third party Appeal had been lodged.

12 The Action Group Committee instructed their solicitor also to appeal the decision of the Town Council to the Board. An appeal dated 19th January, 2005 was, on these instructions, lodged, but accompanied by the letter from the Town Council to the Action Group dated 11th January, 2005 and not the letter in such singular manner dated of the 30th November, 2004.

13 By letter dated 26th January, 2005 the Board indicated its decision to reject the appeal, as s. 127(1)(e) of the Act of 2000 had not been complied with. The Board's position was that the first letter acknowledging the observation or submission dated 30/11/04 was the acknowledgement which should have accompanied the appeal brought by the Action Group, and not that of the 11th of January, 2005.

14 The curious procedure adopted by the Town Council in using miniscule font size or typeface, but only for the purposes of dating is letters can only be seen as a trap for the unwary, although not, I am sure, an intentional one.

15 While there are small divergences between the contents of the three letters there is no divergence in the reference number used by the Town Council; nor is there any discrepancy in the date of the application. In the first letter, it is true the Town Clerk refers to the date of receipt of the letter. But this is set out in normal size print in the text of the letter itself. The unusual date-procedure has not been explained.

16 In response to the order ofcertiorari sought quashing the decision of the Board whereby it rejected the appeal, the Board for its part denies that it erred in law or acted ultra vires its powers in deciding that the appeal...