Paul Maye v Sligo Borough Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 April 2007
• Neutral Citation: [2007] IEHC 146
• Court: High Court
• Docket Number: [2006 No. 1347 JR]
• Date: 27 April 2007

[2007] IEHC 146

THE HIGH COURT

[No. 1347 J.R./2006]

Maye v Sligo Borough Council

COMMERCIAL

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

PAUL MAYE

APPLICANT

AND

SLIGO BOROUGH COUNCIL

RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S50

MOLLOY v DUBLIN CO COUNCIL 1990 1 IR 90

BURKE v WESTMEATH CO COUNCIL UNREP SUPREME 18.6.1998 1998/12/4057

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35(1)(c)

PLANNING & DEVELOPMENT ACT 2000 S38

PLANNING & DEVELOPMENT ACT 2000 S38(4)

PLANNING & DEVELOPMENT ACT 2000 S38(4)(a)

PLANNING & DEVELOPMENT ACT 2000 S38(4)(b)

PLANNING & DEVELOPMENT ACT 2000 S33(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 1(a)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 1(b)

STANFORD, STATE v DUN LAOGHAIRE CORPORATION UNREP SUPREME 20.02.81 1981/8/1312

CRODAUN HOMES LTD v KILDARE CO COUNCIL 1983 ILRM 1

WHITE v DUBLIN CITY COUNCIL & ORS 2004 IR 545

EEC DIR 96/61

DUBLIN CO COUNTY v MARREN 1985 ILRM 593

SHARPE LTD v DUBLIN CITY & COUNTY MANAGER 1989 IR 701

CALOR TEORANTA v SLIGO CO COUNCIL 1991 2 IR 267

WALSH v KILDARE CO COUNCIL 2001 1 IR 483 2000 18 6728

MCGOVERN v DUBLIN CORPORATION 1999 2 ILRM 314

TENNYSON v DUN LAOGHAIRE CORPORATION 1991 2 IR 527

ROUGHAN v CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213

ILLIUM PROPERTIES LTD v DUBLIN CITY COUNCIL UNREP O'LEARY 15.10.2004 2004/22/5201 CONLON CONSTRUCTION LTD,

STATE v CORK CO COUNCIL UNREP BUTLER 31.7.75

DUNKERRIN HOMES v DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP CLARKE 27.4.2007

PLANNING AND ENVIRONMENTAL

Permission

Default permission - Material contravention of development plan - Time period for making decision - Whether time ran from date of advertisement or date of receipt of additional information - Whether applicant entitled to default permission - Whether court had discretion to refuse default permission - Dublin County Council v Marren [1985] ILRM 593; P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701; Calor Teo v Sligo County Council [1991] 2 IR 267 and Walsh v Kildare County Council [2001] 1 IR 483 followed - Planning and Development Act 2000 (No 30), ss 33 and 34(8) - Planning and Development Regulations 2001 (SI 600/2001), reg 26, 33 and 35 - Directive 96/61/EC - Application dismissed (2006/1347JR - Clarke J - 27/4/2007) [2007] IEHC 146Maye v Sligo County Council

1. Introduction

2 2 1.1 This case concerns what is commonly referred to as a "default planning permission". Such permissions arise where there is a valid planning application but the planning authority concerned does not make a decision on that application within the time required by statute. The subject of default planning permissions has been both legally and generally controversial over the years. On a number of occasions the courts have pointed out that the default mechanism has the potential to punish not the planning authority who has failed to make a decision in time, but rather those members of the public who may have opposed the planning permission (or sought that it be limited in some material way) and who do not get the benefit of having a decision made on the merits of their objections.

3 3 1.2 As Blayney J. stated in Molloy v. Dublin County Council [1990] I.R. 90:-

"The purpose (of the default provisions) is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicates its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because of permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted".

4 4 1.3 O'Flaherty J. made comments to similar effect in Burke v. Westmeath County Council (Unreported, Supreme Court, O'Flaherty J., 18th June, 1998).

5 5 1.4 Notwithstanding those comments, the Oireachtas decided in 2000 to retain the regime for default planning permissions in a more or less unaltered way when enacting the Planning and Development Act, 2000 ("the 2000 Act"). The 2000 Act was, of course, a consolidation measure designed to bring together all existing planning laws into one piece of legislation and, where appropriate, to modify those laws in the light of experience. In conducting that exercise the Oireachtas was clearly not persuaded that it was appropriate either to abolish entirely or amend significantly the regime in respect of default permissions. Against that background I have to consider the case made by the applicant ("Mr. Maye") to the effect that he is entitled to such a default permission on the facts of this case.

2. The Facts

2 2 2.1 At present there is an existing pub, nightclub and dwelling on a site at Crozon Crescent, Riverside, Sligo which comprise premises known as "The Blue Lagoon". The site appears to be just over one third of a hectare in area. Mr. Maye proposed a development which would involve the demolition of the buildings currently on the site and their replacement with a complex incorporating a pub, nightclub with a capacity for 1,900 persons and offices, together with ancillary car parking and other works.

3 3 2.2 On 21st December, 2005 an application was lodged with the respondent ("Sligo Council") for a planning permission in respect of that development. On 22nd February, 2006 Sligo Council issued a request for further information relying on Article 33 of the Planning and Development Regulations 2001 ("the 2001 Regulations"). On 15th August, 2006 Mr. Maye responded to the Council's request for further information which response was received by Sligo Council on 16th August, 2006. On the following day Sligo Council wrote to Mr. Maye's agents indicating that the response to its request seeking further information raised significant additional data and it directed that the receipt of the additional information concerned be advertised pursuant to Article 35(1)(c) of the 2001 Regulations. That letter stated as follows:-

"The period of four weeks within which Sligo Borough Council must deal with this application will extend from the date of the newspaper notice when submitted to the planning authority".

4 4 2.3 On 25th August, 2006 the relevant notice was published and on 28th August a copy of the relevant advertisement was received by Sligo Council. On 20th September, 2006 Sligo Council made a decision to refuse planning permission.

5 5 2.4 Thereafter on 16th October Mr. Maye's solicitors wrote to Sligo Council calling on them to make a grant of permission on a default basis. The stated grounds were that the decision should have been taken within 28 days of the receipt by Sligo Council of the further information supplied on behalf of Mr. Maye.

6 6 2.5 These judicial review proceedings were instituted on 14th November, 2006, admitted into the commercial list by order of Kelly J. on 18th December, 2006 and were the subject of a grant of leave by Kelly J. on the following day.

7 7 2.6 While the overall issue between the parties is as to whether, in all the circumstances, Mr. Maye is entitled to the contended for default permission, in substance three sets of issues arise. I, therefore, turn to the issues.

3. The Issues

2 2 3.1 The first issue which arises concerns the proper interpretation of the statutory provisions which govern the time within which a planning authority is obliged to make a planning decision. It is argued on behalf of Sligo Council that what was said in the letter of the 17th August, 2006, quoted above, represents a correct statement of the law. It is common case that the period within which a planning authority has to make its decision is, in practice, suspended while there remains outstanding a request for further information. Therefore, it is common case between the parties that time ceased to run from the issuing by Sligo Council of the request for further information on 22nd February, 2006 and that a new period commenced when that notice was complied with. What is at issue is as to whether (as is contended on behalf of Mr. Maye) that new period commenced on the 16th August, 2006 when the additional information was received by Sligo Council or whether (as contended by the Council) the new period only started to run when an appropriate advertisement of the additional information occurred and a copy of the relevant advertisement was sent to and received by Sligo Council.

3 3 3.2 There is no depute between the parties but that, as a matter of calculation, the planning authority was in time in the making of its decision if it, the council, is correct in its interpretation of when time starts to run again. It is equally not disputed but that, if Mr. Maye is correct in his interpretation of when time started to run again, then the planning authority was out of time.

4 4 3.3 The first issue, therefore, concerns the proper construction of the relevant provisions of s. 38 of the 2000 Act for the purposes of determining whether Sligo Council was, in fact, out of time. If Sligo Council was not of time then, obviously, that is the end of the case. On the other hand if it is out of time then a prima facie entitlement to a default permission arises. However, in that event, Sligo Council raises further issues which it will be necessary to consider.

5 5 3.4 That leads to the second issue which concerns certain limitations on the sort of application which can be the subject of a default...