State (NCE Ltd) v Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 04 December 1979
• Neutral Citation: 1980 WJSC-HC 378
• Docket Number: No. 344 S.S./1979
• Court: High Court
• Date: 04 December 1979

State (N.C.E.) v. DUBLIN COUNTY COUNCIL

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 AND 1976

BETWEEN:

THE STATE AT THE PROSECUTION OF N.C.E. LIMITED

Prosecutor

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Respondent

1980 WJSC-HC 378

No. 344 S.S./1979

THE HIGH COURT

1 Judgment of Mr. Justice McMahon delivered the 4th day of December 1979.

2 This is an application to make absolute a Conditional Order of Mandamus granted to the prosecutor ("the developer") on the 30th July 1979. The Conditional Order requires the respondent ("the Council") to make a formal grant of approval to the developer under the Local Government (Planning and Development) Act 1963on foot of the developer's application for approval dated the 28th of November 1978.

3 The property in question is described in the developer's application as:

"Priests field, Lucan, at junction of Lucan/Clondalkin road on to main Dublin/Galway road".

4 In the year 1975 the Reverend Donal Coughlan P.P. of Lucan County Dublin had applied to the Council for outline planning permission for a commercial development and the construction of an oratory on this property. The Council refused the application but on appeal it was granted by the Minister on the 1st May 1975 subject to a condition-that the developer should pay a contribution to the Council towards the provision of a public water supply and piped sewerage.

5 On the 28th November 1978 the developer applied to the Council consequent on the outline planning permission granted to Father Coughlan for approval for plans for the development of the property. This application was received by the Council on the 1st December 1978. On the 11th April 1979 the Council gave notice to the developer of its decision to refuse approval. The developer contends that as the Council did not give notice of this decision within the period of two months after the day of receipt of the application for permission the Council must be regarded as having given permission on the last day of that period. The Council contends that a letter from the Council to the developer dated the 26th of January 1979 was a valid application for further information in respect of the application, and that consequently notice of refusal was given within the appropriate period under Section 26 (4) (b) of the Act

6 Three issues have emerged from the submissions by the parties. The first issue relates to the terms of the notice of the application published by the developer in the Irish Press of the 25th November 1978. The advertisement was in the following terms:

"Co. Dublin. Approval sought for oratory and shopping centre at Lucan for Messrs N.C.E. Limited"

7 Mr. Cooke for the Council submitted that this notice was defective since it did not contain a statement of "the location of the land" as required by regulation 15(b) Local Government (Planning and Development) Regulations 1977 ( S.I. 65 of 1977). The property is in the parish of Lucan and in the post district served by Lucan Post Office. In my view Lucan is a description of the location of the property as it is the name of the place where the property is situate. Lucan is not the most precise description of the location of the property which could have been employed and if the regulations required the position of the property to be stated I think it would have been necessary to set out the description of the property as in the...