Murphy v Navan UDC

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias O'Caoimh
• Judgment Date: 31 July 2001
• Neutral Citation: [2001] IEHC 118
• Docket Number: No. 157 JR/2000
• Court: High Court
• Date: 31 July 2001

[2001] IEHC 118

THE HIGH COURT

No. 157 JR/2000

MURPHY v. NAVAN URBAN DISTRICT COUNCIL (UDC)

JUDICIAL REVIEW

BETWEEN

JAMES MURPHY

APPLICANT

AND

NAVAN URBAN DISTRICT COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 18(1)(d)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 33

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 15

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 17(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 29

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 ART 26(4)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 17

CONLON CONSTRUCTION LTD, STATE V CORK CO COUNCIL UNREP BUTLER 31.7.1975

NCE LTD, STATE V DUBLIN CO COUNCIL 1979 ILRM 249

MOLLOY V DUBLIN CO COUNCIL 1991 IR 90

ARDOYNE HOUSE MANAGEMENT CO LTD V DUBLIN CORPORATION 1998 2 IR 147

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 39(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 16

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 29

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 ART 26(4)

Synopsis

PLANNING AND ENVIRONMENTAL LAW

Permission

Whether public notices adequately described planning application - Whether planning permission granted by default - Whether responses given by applicant to requests by planning authority adequate - Local Government (Planning and Development) Act, 1976 section 26 - Local Government (Planning and Development) Regulations, 1994 SI 86/1994 (2000/157JR - O Caoimh J -31/7/01)

Murphy v Navan UDC

The applicant initiated judicial review proceedings seeking a default planning permission. The applicant had originally applied for planning permission in respect of a development. The respondent had requested the applicant to submit a revised public notice and had requested details regarding the ownership of the development in question. The complaint was made that the matters raised were raised some considerable time after the receipt of the planning application and not on receipt of the planning application as contemplated by Article 29 of the 1994 Planning Regulations. Mr. Justice Ó Caoimh held that it was reasonable for the respondent to request the applicant to submit revised public notices. However it was not indicated to whom the revised notices were to be submitted i.e. whether they were to be published or whether they were to be submitted to the local authority for approval. The planning authority was entitled to make the request for the further information in relation to the applicant’s interest in the land. The response given by the applicant was not a sufficient response to the request made. The conditions necessary for the obtaining of default permission under the provisions of Section 26 (4) of the 1963 Act had not been satisfied. Furthermore as a matter of discretion the relief sought would not have been granted due to the delay in serving a notice requiring the further notification of the planning application pursuant to the Regulations of 1994.

Mr. Justice Aindrias O'Caoimh

1 This is an application for a declaration that a default planning permission shall be regarded as having been given to the Applicant on the 19th February, 2000 in respect of an application for development comprising: "completion and retention of an extension comprising two floors of offices with roof space storage above the rear of the premises, No. 1 Newbridge, Athlumney, Navan in the County of Meath."

2 On the 23rd December, 1998 Navan Urban District Council granted planning permission for development described as a change of use to office, extension to rear for use as offices with car parking at the lower ground floor area at No. 1 Newbridge, Athlumney, Navan, County Meath planning permission register and reference number TP51/98." These premises are adjacent to the river Boyne and when the Applicant jointly purchased the same with Cyril Maguire on the 3rd February, 1998 the purchase included a 10 foot wide strip of ground along the western boundary of the premises along the bank of the river Boyne.

3 Construction work began in or about March, 1999 and consultant engineers advised that some minor alterations were necessary to avoid seasonal flooding from the river Boyne. As a result, it was necessary to raise the original floor levels proposed on the approved plans by approximately 2 to 3 feet. The Applicant was advised that these were minor alterations which had no significant effect on the external appearance of the premises and were within the terms of the planning permission TP51/98. However, the Respondent, Navan Urban District Council did not agree and on the 29th June, served a warning notice under Section 26 of the Local Government (Planning and Development) Act,1976acquiring works to be discontinued, on the basis that the development was unauthorised as being "not in compliance with planning permission TP51/98". Construction work ceased and subsequently on the 18th August, the Applicant applied for planning permission to "complete and retain an extension comprising two floors of offices with roof space storage above to rear of premises at No. 1 Newbridge, Athlumney, Navan, County Meath." This planning application was given register reference number TP54/99.

4 On the 18th August, 1999 the planning application was lodged. On the 29th September, 1999 the Respondent wrote to the Applicant stating that the planning application which was received on the 20th August, 1999 was incomplete and could not be considered pending the payment of the balance of the planning fee in the sum of £15.72. This fee was discharged on 4th October, 1999 and by letter dated the 1st December, 1999 a request was made for further information with respect to the planning application. Six items of further information were required of which two are of particular relevance, namely number 2 which reads as follows:-

"It is considered that the description of the proposed development as contained in the public notices and descriptions of the proposed development as contained in the application form are inaccurate. It is considered that the description of the proposed development should read as follows:-"

"Intend to apply for planning permission for change of use of existing dwelling to office use, to retain exposed stone facade to front and side elevation of existing dwelling, retain and complete extension to the rear of dwelling for use as an office at lower ground floor and ground floor with roof storage space overhead."

"You are requested to submit revised public notices accordingly to include any alterations to the description of the proposed development arising from your response to this request for further information."

The request continued

5 The second matter was that contained at number 3 in the said letter of request which reads as follows:-

"You are requested to submitdocumentary evidenceconfirming your ownership of the entire application site as outlined in red on the site application map submitted with the current planning application. It is understood that a portion of this land is in the ownership of Navan UDC. If you do not own the entire application site as outlined in red on the site application map, you are requested to"

(i) Indicate the name and address of the owner of all or part of the application site on a revised planning application form in accordance with Article 18(l)(d) of the 1994 Local Government (Planning and Development) Regulations;

(ii) Indicate the ownership of the application site or part thereof, which is outside of your direct ownership, demarcated clearly by colour, on a revised site layout plan to a scale not less than 1 to 500;

(iii) Submit a letter of consent from the owner of the land if outside your direct ownership upon which it is proposed to build.

6 By letter dated the 20th December, 1999 the Applicant replied to the said notice requiring further information in relation to the items 2 and 3 as follows:-

7 2 "2. Suggested revised public notice is inappropriate. It is not intended to apply for change of use from dwelling to office use, since permission for this change of use was granted by Navan UDC on 23rd December, 1998, register reference 51/98. This application is to complete and retain alterations to the approved extension.

8 3. Ownership is not an issue in this application and having been clarified in the context of the previous application of 51/98 as regards lands in the ownership of Navan UDC the Applicant is entitled to call for the transfer of a 10 foot strip of land along the boundary between his property and that of the UDC in accordance with the letter from the UDC's solicitors to his predecessors in title, dated the 3rd February, 1998 (copy enclosed)."

9 The letter referred to in paragraph 3 thereof was addressed to the personal representative of Mary Smith deceased and read as follows:-

"We refer to our telephone conversation with you and confirm that we act on behalf of Navan Urban District Council. The Urban District Council are agreeable to a rectification of your client's property, there by giving your client a 10 foot width along the boundary of your client's boundary as marked in the map in the contract for sale. Further, as you are aware, this is conditional on your client erecting a proper stock proof fence on the boundary."

10 Notwithstanding this response Navan Urban District Council did not determine the application but instead on the 16th February, 2000 wrote again to the Applicant purporting to request "clarification of further information" by reiterating the requests to submit revised public notices in the form originally set out in the letter of the 1st December, 1999 and reiterating also the request set out in paragraph 3 of the said letter of the 1st December, 1999 other than the request to submit a letter of consent "from the owner of the land if outside your direct ownership...