Murray v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 12 March 1996
• Neutral Citation: 1996 WJSC-HC 1994
• Docket Number: 5115P/1993,[1993 No. 5115 P]
• Court: High Court
• Date: 12 March 1996

1996 WJSC-HC 1994

THE HIGH COURT

5115P/1993

MURRAY v. WICKLOW CO COUNCIL

BETWEEN

WILLIAM MURRAY

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL

DEFENDANT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S10(2)

CREEDON V DUBLIN CORPORATION 1983 ILRM 39

DUBLIN CO COUNTY V MARREN 1985 ILRM 593

COLGAN V DUBLIN CORPORATION UNREP COSTELLO 19.3.91 1991/8/1750

MOLLOY V DUBLIN CO COUNCIL 1990 1 IR 90

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1982 ILRM 590

SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S26(3)

Synopsis:

DELAY

Application

Prosecution - Failure - Effect - Lapse - Whether application for planning permission had lapsed - Whether planning decision necessary - Whether proposed development contravened development plan- Whether default permission granted - (1993/5115 P - Barron J. - 12/3/96) - [1996] 2 ILRM 411

|Murray v. Wicklow County Council|

PLANNING

Decision

Notice - Service - Time limit - Compliance - Failure - Whether application for planning permission had lapsed - Whether planning decision necessary - Whether proposed development contravened development plan - Whether default permission granted - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-s. 4 - Local Government (Planning and Development) Act, 1982 (No. 21), s. 10 - (1993/5115 P - Barron J. - 12/3/96)1996 2 ILRM 411

|Murray v. Wicklow County Council|

1 Judgment of Mr. Justice Barrondelivered the 12th day of March, 1996.

2 The Plaintiff is the owner of a dwellinghouse and lands at Kilcroney in County Wicklow. The eastern boundary of the lands abuts the Nil being the main Dublin to Wexford Road. The southern boundary abuts the road from Enniskerry to the Nil. On the 6th March, 1989 the Applicant made an application to the Defendant to develop a two acre portion of his lands to be developed as a garden centre. The particular portion concerned was on the south east of his holding and abutted the two roads to which I have referred.

3 On the 15th March, 1989 the Defendant notified the Plaintiff that an insufficient fee had accompanied his application. Notwithstanding this, no additional fee was paid. Nevertheless, on the 21st April, 1989 the Defendant made a decision refusing permission for the proposed development. The reasons for the refusal were set out in a schedule to the notification as follows:-

4 2 "1. The proposed development would be located in an exposed position adjoining the national primary road and would be materially contrary to the objective of a County Development Plan to restrict developments within 110 metres of the road in the interests of visual amenity and tourism.

5 2. The proposed development would be contrary to the proper planning of the area which requires a commercial development in the vicinity of the Bray development area should be confined to the east side of the national primary road in the interests of preserving the distinction between urban and rural areas and in order to avoid the generation of local traffic crossing the primary road. If permitted, the present proposal would set a precendent for further inappropriately situateddevelopment.

6 3. The proposed development would give rise to a serious traffic hazard at the entrance due to inadequate sight-lines at that point.

7 4. The proposed commercial development would endanger public safety by reason of a traffic hazard because the additional turning movements it would generate at the junction of the national primary road and the county road giving access to the site would interfere with the safety and free flow of traffic on the national primary road."

8 Following this refusal, the Plaintiff appealed to AnBord Plenala on the 16th May, 1989. Following notification by the Board that the balance of the appropriate fee payable to the Defendant was still outstanding and that the Board might be precluded from the hearing appeal, the appeal was withdrawn on the 12th June, 1989. Nothing happened for virtually three years. On the 2nd June, 1992 the fee was paid by the Plaintiff who notified the Defendant that he intended to pursue his appeal. He also indicated that he would provide the Defendant with a full copy of his appeal. On the 17th June, 1992 the Plaintiff was informed by an Bord Plenala that since his appeal had been withdrawn by letter dated the 12th June, 1989 that it would be necessary for him to make a fresh application to the Defendant and that only if he was aggrieved by any decision of the Defendant on such an application, the Board could become involved. It appears that the Defendant took the view that the notification of the 2nd June, 1992 and the payment of the balance of the appropriate fee on that date should be treated as a fresh application for permission. Whether or not this is a correct interpretation of the views of the Defendant, by Order dated 31st July, 1992 the application was refused. Notification of such refusal did not reach the Plaintiff until the 5th August, 1992.

9 On these facts the Plaintiff claimed that the notification of the decision of the 31st July, 1992 did not reach him within the two months allowed and that accordingly the default provisions of the statutory code came into effect and that as of the 1st August, 1992 he became entitled to a default permission for the development indicated on his application. The Defendant opposes the application on the followinggrounds:

10 (1) That there was only one application before the Defendant and that its decision made on the 21st April, 1989 bars the operation of the default provisions of the Acts;

11 (2) That similarly the decision made on the 31st July, 1992 bars the operation of those default provisions;

12 (3) That even if the decision of the 21st April, 1989 was invalid because the appropriate fee had not been paid, nevertheless it remained good since it had not been quashed within the two month period required by the Acts;

13 (4) That in any event the default permission could not come into existence since the Defendant had no authority to grant a permission for a development which...