Murray v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 28 January 2000
• Neutral Citation: [2000] IEHC 10
• Docket Number: [1999 No. 263 J.R.]
• Court: High Court
• Date: 28 January 2000

[2000] IEHC 10

THE HIGH COURT

Record No. 263 J.R./1999

MURRAY v. AN BORD PLEANALA

JUDICIAL REVIEW

ORDER 84 OF THE RULES OF THE SUPERIOR COURTS

BETWEEN

CORNELIUS MURRAY JUNIOR

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

BRENDAN McDAID AND FRANCES McDAID

NOTICE PARTIES

Citations:

RSC O.84

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3B)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S1

MCCARTHY V BORD PLEANALA UNREP GEOGHEGAN 15.5.1998 1998/24/9598

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 ILRM 1

Synopsis

Planning

Planning; judicial review; applicant had been granted certain planning permissions by the planning authority in respect of the proposed development of a dwellinghouse; notice parties appealed against the decision of the planning authority; respondent refused applicant permission for the proposed development; applicant seeking judicial review of the respondent's decision; notice of motion and documentation required to ground the present proceedings had not been served upon the planning authority; whether application was time-barred, having regard to the provisions of s. 82(3A), Local Government (Planning and Development) Act, 1963, as amended by s. 19(3), Local Government (Planning and Development) Act, 1992; whether the interests of the planning authority were relevant to the proceedings; whether the proper construction of s.19(3) could accommodate or result in an investigation by the court into whether or not the interests of the planning authority may or may not be relevant to the issues which fall to be determined in the proceedings which the applicant wishes to commence; whether the planning authority came within the category of a party which is provided for mandatorily within s.19(3).

Held: Applicant barred from seeking the relief sought against the respondent.

Murray v. An Bord Pleanála - High Court: Quirke J. - 28/01/2000 - [2000] 1 IR 58

The applicant had originally received planning permission to build a dwellinghouse. The notice parties appealed to An Bord Pleanála ("the respondent") in respect of the permission granted and the appeal was granted. The applicant sought to challenge the decision of the respondent by way of judicial review. A preliminary issue arose as to whether the notice of motion had been served within the time limits on the relevant parties as set out in section 19(3) of the Local Government (Planning and Development) Act, 1992. The applicant had conceded that Donegal County Council had not been served with the necessary documentation but that a letter from the County Council's solicitors indicated that the County Council did not wish to be involved in the judicial review proceedings. Quirke J held that the County Council was a relevant party to the proceedings. The proceedings had consequently not been properly served and the applicant was therefore barred from seeking the relief in question.

1 Judgment of Mr. Justice Quirke delivered the 28 day of JAN. 2000.

2 In these proceedings the Applicant wishes to seek relief by way of Judicial Review a decision of An Bord Pleanala dated the 10th day of May, 1999 whereby the Board refused the Applicant permission for the retention and completion of a house at Pound Street, Ramelton in the County of Donegal and the parties have applied to this Court to determine a preliminary question as to whether the application is now time-barred, having regard to the provisions of Section 82(3 A) of the Local Government (Planning and Development) Act, 1963(hereafter referred to as the 1963 Act) as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992(hereafter referred to as the 1992 Act).

3 In brief, the Applicant, on 26th March, 1993 received a gift of certain property at Pound Street in Ramelton in Co. Donegal comprising a derelict dwellinghouse and in or about 1994 he caused the dwellinghouse to be demolished so that he could build a new house on the site for himself and his family.

4 On 18th August, 1995 he received a grant of planning permission from Donegal County Council to build a dwellinghouse on the site and on 22nd October, 1998 he received a further grant of planning permission in respect of the same dwellinghouse which, inter alia, provided that the dwellinghouse would have four windows at ground level to its rear.

5 The Notice Parties appealed against the decision of Donegal County Council and on the 10th day of May, 1999 An Bord Pleanala determined that appeal in favour of the Notice Parties and refused the Applicant permission for his proposed development on the grounds that it would "... injure the amenities of the adjoining property by reason of overlooking and would therefore be contrary to the proper planning and development of the area".

6 On the 9th day of July, 1999 the Notice of Motion and other documentation required by law to ground the proceedings herein were served upon the Respondent and the Notice Parties but no such Notice of Motion or other documentation was served upon Donegal County Council and the Respondent contends that the Applicant is not and cannot be entitled to the relief which he seeks herein because he is time-barred, having regard to the provisions of Section 19(3) of the 1992 Act.

7 Section 19(3) of the 1992 Act amends Section 82 of the 1963 Act by the insertion of two sub-sections in, inter alia, the following terms:-

8 a "(3A) A person shall not question the validity of -

9 ...

10 (b) a decision of the Board on any appeal...

11 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No.15 of 1986) (hereafter in this section referred to as...