O'Neill v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 2527
• Court: High Court
• Date: 01 January 1983
• Docket Number: No. 2564 P/1979

1982 WJSC-HC 2527

No. 2564 P/1979

O'NEILL v. CLARE CO. COUNCIL

THOMAS GERARD O'NEILL

-v-

CLARE COUNTY COUNCIL

1 Judgment delivered by Mr. Justice McWilliam the 18th day of May, 1982.

2 The Plaintiff's claim arises out of the failure of the Defendant to adjudicate on and give notice to the Plaintiff of its decision on an application by the Plaintiff for planning permission within the times limited by section 26 of the Local Government (Planning and Development) Act, 1963, hereinafter called The Act. The application related to a proposed development of nine acres approximately in the townland of Rosslevan, near Ennis, Co. Clare, by constructing eighteen dwellinghouses thereon. The Plaintiff claims various declarations relating to the granting of permission and also claims damages for breach of statutory duty and for negligence.

3 The relevant provisions of section 26 of The Act are as follows:-

4 Subsection (4) (a) Where -

5 (i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,

6 (ii) Any requirements relating to the application or made under such regulations are complied with, and

7 (iii) the planning authority do not give notice to the applicant of their decision within the appropriate period, a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day or that period.

8 (b) In paragraph (a) of this subsection "the appropriate period" means -

9 (Clauses (i) and (ii) are not applicable to this case.)

10 (iii) in any other case - within the period of two months beginning on the day of the receipt by the planning authority of the application.

11 Subsection (5) (a) any person may, at any time before the expiration of the appropriate period, appeal to the Minister against a decision of a planning authority under this section

12 (c) In paragraph (a) of this subsection "the appropriate "period" means -

13 (i) in case the appellant is the applicant - the period of one month beginning on the day of the giving of the decision,

14 (ii) in any other case - the period of twenty-one days beginning on the day of the giving of the decision.

15 Subsection (9) (a) Where the planning authority decide under this section to grant permission or approval -

16 (i) In case no appeal is taken against the decision, they shall make the grant as soon as may be after the expiration of the period for the taking by the applicant of an appeal or, in a case to which subsection (4) of this section applies, of the period for the taking of an appeal otherwise than by the applicant.

17 The Plaintiff had a house at Rosslevan, near Ennis, for some years. In 1970 he got the opportunity to purchase 24 acres at Rosslevan and a holding of 10 acres a couple of miles away at Tureen. He was employed with the Defendant since 1958 and is now purchasing officer for the Defendant. He stated that he intended to farm these lands and, as they were in a neglected state, he did a considerable amount of reclamation work on them. In August, 1978, he purchased a substantial house with 38 acres of land at Corbally for £140,000 which he had to raise from the bank. He stated that he intended to sell so much of the lands of Rosslevan as was necessary to pay for Corbally. He thought the land at Rosslevan had considerable potential for development and made an application to the Defendant for planning permission for the eighteen houses on 6th October, 1978. On 13th October, 1978, particulars of the proposed public lighting for the development were furnished to the Defendant. On 29th November, 1978, the application was amended by excluding one site but this did not affect the application with regard to the remaining sites.

18 It has been argued on behalf of the Defendant that, under these circumstances, the effective date of the application was 29th November, 1978, or, possibly, 13th October, 1978. I do not accept this argument. One of the witnesses for the Defendant accepted that the furnishing of particulars as to lighting was not fundamental and that the proposals as to it were quite properly submitted after the original application had been made. Similarly, he appeared to agree that the exclusion of one site was nothing new and I do not consider that the elimination of a plot by the Plaintiff should be interpreted as constituting a new application although I can see that the position might be different if it had been proposed to add an extra plot. It may also be of significance in this connection that the notification of decision belatedly made on 28th...