Openneer -v- The County Council of the County of Donegal, [2005] IEHC 156 (2005)

Docket Number:2004 No. 1154 JR
Party Name:Openneer, The County Council of the County of Donegal
Judge:Macken J.
 
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THE HIGH COURT [Record No. 2004 1154 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEENMAARTEN OPENNEERAPPLICANTAND

THE COUNTY COUNCIL OF THE COUNTY OF DONEGALRESPONDENTAND

JOHN SWEENEY AND SIOBHAN SWEENEY

NOTICE PARTIESJUDGMENT delivered by Mrs. Justice Macken on the 13th day of April, 2005

This is an application for judicial review in a planning matter and so it falls to be considered predominantly pursuant to the provisions of s. 50 of the Planning and Development Act, 2000 (as amended).

The application concerns two separate developments, of two individual dwelling houses, in County Donegal, which were the subject of planning application reference numbers 04/2511 and 04/2512, in respect of which decisions to grant permissions were made on 7th May, 2004 and 11th May, 2004 respectively. From the material disclosed on affidavit, it seems clear that the notifications of the grant of planning permission were issued on 25th and 29th June, 2004 respectively.

The applicant seeks, in essence, leave to issue judicial review proceedings in respect of these two decisions, seeking (a) certiorari to quash them both, (b) declarations that the above numbered applications which led to the decisions were null and void, (c) an order extending the time within which the proceedings can be brought, (d) a stay on the implementation of the purported planning permission, or in the alternative, an injunction restraining the implementation of the permissions.

The grounds upon which the leave to issue the proceedings are firstly, the respondent failed to have regard to submissions lawfully made by the applicant within the statutory period for so doing, and thereby breached the rules of natural and constitutional justice and of the statutory requirements of the Planning and Development Regulations, 2001. Secondly, the respondent failed to accept the submissions of the applicant, with the same consequences in law. Thirdly, the respondent failed, in the circumstances of the case, to accept the submissions of the applicant for both or for one or other of the planning applications and failed to notify the applicant of that decision until after the period for the lodging of submissions had expired. Fourthly, the respondent failed to advise the applicant as to the fee applicable in relating to the lodging of the submissions, and accepted a lesser fee, without notification to him of the error in so doing. Finally, on this aspect of the claim, the applicant pleads that the respondent failed to notify the applicant of its decision to refuse to accept the applicant's submission as soon as may be and in any event not until after the date of the decision, and contrary to the provisions of Article 31 of the regulations of 2001, so that, in consequence, this frustrated the applicant's in exercising his statutory right of appeal.

In a second series of grounds, the applicant claims that the respondent accepted an application for planning permission which did not comply with the statutory or regulatory requirements in that it granted permission for rural housing to persons not indigenous to the rural community in question, and in breach of s. 25 and in material breach of the Donegal County Development Plan, 2000. Further, it failed to inspect the sites for the appropriate site notices within the required period from the date of the applications for planning permission. Further, the provisions of the Article 17 of the Regulations of 2001 were not complied with.

As I have mentioned, the applicant also sought an extension of time within which to commence the within proceedings on grounds which I will consider in greater detail, as the Respondent pleads that the applicant should not be permitted to bring these proceedings, in light of the delay which has occurred. The notice parties concur with the arguments of the respondent in that regard.

To understand the factual matrix in which the application for leave is sought, and also the issue of delay, I must set out in some detail the chronology of events in respect of the applications and the decisions made.

Applications were made by each of the first and second named notice parties for permission to construct two separate houses with appropriate ancillary works in County Donegal. The two applications bear the numbers already referred to. The applications were lodged on 18th March, 2004 and received the date of 19th March, 2004 for the purposes of time running under the statute. With the applications it would appear that there were furnished (a) the required newspaper notices, and (b) what purported to be the "site notices", both required to be provided pursuant to the statutory scheme on planning applications.

It appears to be the case, and this is not disputed, or at least not clearly disputed in the affidavit evidence filed, that neither of the site notices was in fact in place on the site of the proposed dwelling houses prior to or at the time when the applications were filed, although this is what is required. The applicant avers that the site notices were not affixed to the site until a date in the first week in April. The first named notice party swore an affidavit in which he denied that the notice parties had not complied with the statutory requirements. However, he did not say that the site notices were actually affixed to each of the sites, nor when they were so affixed nor by whom, either on his own behalf nor on behalf of his sister the second named notice party. I am prepared to deal with this case on the basis that the applicant's evidence should, at least at this point in time, stand as evidence that the site notices were not erected until sometime in or around the 4th April, and were not in place on the 18th or 19th March, 2004.

There were two previous applications lodged in respect of two houses at the same location, also in what might be called duplicate applications, but these had been withdrawn. The applicant, together with several other named persons, wished to oppose the two applications the subject matter of this application. The applicant and those others therefore decided to oppose them, and on 20th April, 2004 lodged an objection in writing, which...

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