Ryan v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 11 March 2009
• Neutral Citation: [2009] IEHC 115
• Court: High Court
• Docket Number: RECORD NO.1474JR/2007
• Date: 11 March 2009

[2009] IEHC 115

THE HIGH COURT

RECORD NO.1474JR/2007

Ryan v Clare Co Council

BETWEEN:

MARTIN RYAN and MICHAEL RYAN

APPLICANTS

AND

CLARE COUNTY COUNCIL

RESPONDENT

AND

EITHNE O'BRIEN, PATRICIA CRONIN, D ÓNAL STEWART and MARIE STEWART

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S34(8)(F)

PLANNING & DEVELOPMENT ACT 2000 S34(8)(A)

PLANNING & DEVELOPMENT ACT 2000 S34(11)

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

RSC O.84 r21

ABENGLEN PROPERTIES, STATE v DUBLIN CORP 1984 IR 3811982 ILRM 590 1982/1/1

PLANNING & DEVELOPMENT ACT 2000 S34(6)

DUBLIN CO COUNCIL v MARREN 1985 ILRM 593 1985/5/1137

CALOR TEO v SLIGO CO COUNCIL 1991 2 IR 267 1991/11/2646

PINE VALLEY DEVELOPMENTS LTD, STATE v DUBLIN CO COUNCIL 1984 IR 407

PLANNING & DEVELOPMENT ACT 2000 S18(3)

PLANNING & DEVELOPMENT ACT 2000 S15

PLANNING & DEVELOPMENT ACT 2000 S34

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

LOUGH v FIRST SECRETARY OF STATE 2004 EWCA CIV 9052004 1 WLR 2557 2005 1 P & CR 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

DEKRA EIREANN TEO v MIN FOR ENVIRONMENT 2003 2 IR 270

O'BRIEN v MORIARTY 2006 2 IR 2212005 2 ILRM 321 2005/45/9458 2005 IESC 32

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 REG 31

PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 REG 8

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

MAYE v SLIGO BOROUGH COUNCIL 2007 4 IR 678 2007/39/8174 2007 IEHC 146

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Development plan - Refusal to notify applicants of decision - Judicial review - Time limits - Delay - Whether application made out of time - Discretionary nature of remedy - Planning and Development Act 2000 (No 30), ss 18(3), 34(8)(f) and 50 - Planning and Development Regulations 2001 (SI 600/2001), art 31 - Dekra Éireann v Minister for Environment [2003] 2 IR 270 and O'Brien v Moriarty [2006] 2 IR 221 considered - Relief refused (2007/1474JR - Hedigan J - 11/3/2009) [2009] IEHC 115

Ryan v Clare County Council

Facts: The applicant builders sought a declaration that the respondent was deemed pursuant to s. 34(8)(f) of the Planning and Development Act 2000 to have made a decision to grant planning permission for a particular development in Co. Clare. Planning officers had recommended a refusal of the application and a draft order was prepared but due to oversight was not signed by the relevant person. The respondent submitted that the applicants were disentitled to relief by virtue of their delay in litigating the issue. The issue arose as to whether the development would contravene the Local Area Plan or whether it contravened the County Development Plan.

Held by Hedigan J. that the Court was satisfied that the default planning permission should not have issued. The reliefs sought would be refused. The Court could not act itself as a planning authority unless it was incontrovertibly shown that a default planning permission would be fully in accordance with the Local Area Plan. There was good reason to suspect that the proposal would contravene the policies set down in the plan.

Reporter: E.F.

Mr. Justice Hedigan,

1 The Applicants are brothers and building developers, based in Limerick City.

2 The respondent is a local authority with responsibility for the administrative area of County Clare. Its functions include the management of building developments in the county, in particular by means of the grant or refusal of planning permission.

3 The notice parties are individuals who reside immediately adjacent to the proposed development which forms the subject matter of this application. Two of the notice parties are recently deceased and were represented at the hearing of the matter by their executors.

4 The applicants seek a declaration that the respondent is deemed, pursuant to section 34(8)(f) of the Planning and Development Act2000 ('the 2000 Act') to have made a decision to grant planning permission to the applicants in respect of a development proposal made on the 2^nd of May 2007 relating to certain works at a property on Liscannor Road, Lahinch in the County of Clare. Section 34(8)(a) of the 2000 Act prescribes a time limit of 8 weeks within which an initial decision on any planning application must be made, failing which section 34(8)(f) comes into operation and default planning permission may arise.

5 The applicants further seek an order ofmandamus directing the respondents to grant planning permission to the applicants in respect of the proposed development, pursuant to section 38(11) of the 2000 Act.

I. Factual and Procedural Background

6 On the 1st of May 2007, the applicants applied in writing to the respondent for planning permission in respect of proposed development works at Dough, Liscannor Road, Lahinch in the County of Clare. This application was received by the respondent on the 2nd of May 2007. The proposal entailed the demolition of an existing single-storey house on the site and the construction of two new two-storey houses. There were also associated site development works, such as the creation of car parking spaces.

7 The applicants' planning consultant, Mr. Gary Rowan, wrote to the respondent's planning department on the 27th of June 2007, seeking clarification of the position. Mr. Rowan was initially advised, in error, that the respondent had decided to refuse the application for planning permission. This error was corrected in a matter of days and it is clear that by the 3rd of July 2007 at the latest, the applicants were aware that no formal decision had been made within the statutory period. Mr. Rowan also contacted the respondent's legal representatives on the 4th of July 2007, seeking clarification of the position.

8 As it transpires, the relevant planning officers and other technical experts had in fact recommended the refusal of the application and a draft order was prepared to this effect. However, due to an oversight, this draft order was not signed by the relevant person to whom the responsibility for making appropriate managerial orders was delegated. This failure to sign the draft order within the relevant time period had occurred despite there being a specific arrangement that the order was to be formally endorsed on the 27th of June 2007, which perhaps explains to some extent the conflicting pieces of information which were received by Mr. Rowan.

8 In the ensuing weeks, the parties exchanged correspondence in which the applicants sought to establish that default planning permission would in fact issue. The respondent refused to make any commitment in this regard and on the 25^th of September 2007, the applicants were informed of the respondent's refusal to allow them to avail of the default permission mechanism.

9 Having failed to obtain confirmation of default permission, the applicants served a notice of motion seeking judicial review on the respondent on the 9^th of November 2007. Leave to apply by way of judicial review was granted by Peart J. on the 19^th of November 2007.

II.The Submissions of the Parties

(a) Delay

10 The respondent submits, by way of preliminary objection, that the applicants are disentitled to relief by virtue of their delay in bringing this application before the Court. In this regard, they suggest that Section 50 of the 2000 Act applies. It provides as follows:

2 "(1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by:-

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV, or

(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of land, 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) (the "Order").

(3) Subsection (2)(a) does not apply to an approval or consent referred to in Chapter I or II of Part VI.

(4) A planning authority, a local authority or the Board may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Board, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Board in relation to the matter concerned.

(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Board is within the jurisdiction of the authority or the Board, make an order staying the proceedings concerned on such terms as it thinks fit.

(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.

(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date...