O'Shea v Kerry County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 01 September 2003
• Neutral Citation: [2003] IEHC 51
• Date: 01 September 2003
• Docket Number: [2003 No.
• Court: High Court

[2003] IEHC 51

THE HIGH COURT

[Record No. 2003/129JR]

O'SHEA v. KERRY CO COUNCIL

BETWEEN

MARGARET O'SHEA

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF KERRY

RESPONDENT

AND

ELMPATH LIMITED AND ELMPATH HOLDINGS LIMITED

NOTICE PARTIES

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 14(1)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16(3)

PLANNING & DEVELOPMENT ACT 2000 S54(4)(C)(II)

BLESSINGTON & DISTRICT COMMUNITY CO V WICKLOW CO COUNCIL 1997 1 IR 273

SPRINGVIEW MANAGEMENT COLTD V CAVAN DEVELOPMENT LTD 2000 1 ILRM 437

PLANNING & DEVELOPMENT ACT 2000 S50

DOYLE, STATE V CARR 1970 IR 87

KENNY V AN BORD PLEANALA 2001 1 IR 565

WHITE V DUBLIN CORPORATION & TREACY UNREP O'CAOIMH 25.5.2001 2002/28/7228

PLANNING & DEVELOPMENT ACT 2000 S50(4)(A)(III)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(A)(IV)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(D)

Synopsis:

PLANNING AND EVIRONMENTAL LAW:

Planning permission

Notification - Site notice - Compliance with statutory requirements as to visibility and legibility - Judicial review - Application for leave - Application to extend time within which leave may be sought - Whether substantial grounds - Reason for delay in bringing application - Whether applicant has substantial interest in challenging decision to grant planning permission - Whether applicant prejudiced by misdescription of person applying for planning permission - Planning and Development Act 2000, sections 50 and 54 - Local Government (Planning and Development) Regulations 1994, articles 14 and 16 (2003/129JR - O Caoimh J - 1/9/2003)

O'Shea v Kerry County Council - [2003] 4 IR 143

the notice party was granted planning permission by the respondent for a 29 house residential scheme. The applicant sought to quash that decision on the grounds, inter alia, that the provisions of articles 14 and 16 of the Local Government (Planning and Development) Regulations 1994 had not been complied with in so far as requisite site notices had not been placed at or near a public road or, if the land in question did not abut a public road, placed so as to be clearly visible and legible from the public road. As a person over whose property there existed a right of way to the scheme in question, the applicant contended that she had sufficient interest in bringing the application. She also sought leave to extend the time for bringing the application as she contended that she had not become aware of the proposed development until after the expiration of the eight week period for bringing such applications due to the alleged non-compliance with the statutory requirements as to the placing of site notices and that a portion of that time had been spent in trying to ascertain the true identity of the notice party.

The applicant further contended that the fact that the entity who had applied for and been granted planning permission was not the same company which had appeared on the site notice in question invalidated the decision to grant planning permission and amounted to a substantial ground for quashing that decision within the terms of section 50 of the Planning and Development Act of 2000.

The respondent submitted that the applicant was not a person who could show a substantial interest in challenging the decision as was required by section 50 of the Act of 2000 and moreover that she had not discharged the requirement of showing substantial grounds for contending that the decision was invalid or ought to be quashed, the objection raised by the applicant being entirely technical in nature. Accordingly, the court should exercise its discretion by refusing to extend time for bringing the application for leave to apply for judicial review.

Held by Ó Caoimh J in refusing the applicant leave to extend time for bringing the application that:

1. the lands the subject matter of the decision to grant planning permission did not adjoin a public road and accordingly the applicable site notice was one to be placed on the land in a conspicuous position so as to be easily visible and legible by persons outside the land or structure. The applicant could not show that she was damnified by the location of the site notice in question;

2. by reference to the provisions of section 50(4)(d) of the Act of 2000, which provides that "a substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest", it could be seen that the term substantial interest" was not to be narrowly construed. However, the fact that a member of the public may have an interest in seeing that the law is observed is not such as to amount to the existence of a "substantial interest" within the terms of that section. By merely stating that she is the owner of land over which a right of way exists to the land to which the planning permission attached, the applicant had failed to show in what manner she would be affected by the proposed development and accordingly failed to show a substantial interest in the matter;

the fact that the wrong company had been named in the site notice of the planning application did not amount to substantial grounds for contending that the decision was invalid or ought to be quashed, especially where the applicant had not been damnified by the matters complained of which were essentially technical in nature.

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 1st September, 2003.

2 The applicant resides at Greenane, Kenmare, County Kerry and describes herself as a widow and seeks the following reliefs:

3 1. An order by way of certiorari quashing the grant of planning permission which issued by the respondent on the 19 ^thNovember, 2002.

4 2. A declaration that the respondent acted ultra vires in deciding to grant and then subsequently granting the aforesaid planning permission to the first named notice party in circumstances where the respondent knew or ought to have known that the site notice was not erected or fixed on the lands, the subject matter of the application in accordance with art. 14(1)(b) of the Local Government (Planning and Development) Regulations, 1994 or at all.

5 3. A declaration that the respondent acted ultra vires in granting the aforesaid planning permission to the notice party in circumstances where the respondent knew or ought to have known that the site notice was not maintained in position on the said lands for a period of at least one month after the making of the planning application in accordance with the provisions of arts.16(1), (4) and (5) of the Local Government (Planning and Development) Regulations, 1994.

6 4. A declaration that the respondent acted ultra vires in granting the aforesaid planning permission to the notice party in circumstances where the respondents knew or ought to have known that the position of the site notice on the land or structure concerned was shown in a manner that did not comply with the provisions of arts. 16 (1) to (5), where the site notice was spositioned (and shown to be so positioned on the plan accompanying the planning permission) so as it was not easily visible and legible to persons outside the land or structure or was not securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from the public road, or in any other part of the land or structure on the public road, so as to be easily visible and legible for persons using the public road.

7 The grounds upon which the application is sought include the following:-

8 1. The notice party Elmpath Limited applied for a planning permission to the respondent for permission to build 29 "ancillary" holiday homes with a proprietary treatment system at Greenane, Templenoe, in the County of Kerry in December, 2001.

9 2. Article 14 (1) (b) of the Local Government (Planning and Development) Regulations, 1994 (which apply herein) provided that, not later than the making of the planning application, the applicant give notice of the application by the erection and fixing of a site notice in accordance with art. 16.

10 3. Article 16.1 specifies that "A site notice erected or fixed on any land or structure pursuant to art.14(1)(b), (a) shall be painted or inscribed, or printed and affixed on a durable material, and (b) subject to sub-article (2), shall be securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road."

11 4. Article 16(2) provides "where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure."

12 5. Article 16(3) provides; "the position of the site notice on the land or structure concerned shall be shown on a plan accompanying the planning application."

13 6. Article 16(4) provides that the contents of the site notice shall indicate that the planning application may be inspected at the offices of the planning authority.

14 7. Article 16(5) provides that a site notice shall be maintained in the position on the land or structure concerned for a period of at least one month after the making of the planning application and shall be renewed or replaced if it is removed or becomes defaced or illegible in that period.

15 8. The first named notice party herein failed to provide a site notice...