Tennyson v Corporation of Dun Laoghaire

• Jurisdiction: Ireland
• Judgment Date: 29 November 1991
• Date: 29 November 1991
• Docket Number: [1990 No. 152 J.R.]
• Court: High Court

Tennyson v. Corporation of Dun Laoghaire

Anthony Tennyson, Nigel Martin, Patrick Soraghan, Michael Halpenny, Isolde Dallas McCullough and Joseph Morgan

Applicants

and

The Corporation of Dun Laoghaire, Respondent and Brookmore Investments Limited, Notice Party

[1990 No. 152 J.R.]

High Court

Local government - Planning and development - County development plan - Principles to be applied in construing plan - Whether development for which permission granted in material contravention of plan - Statutory mechanism to permit contravention not invoked - Whether permission invalid - Local Government (Planning and Development) Act, 1963 (No. 28), Part III and s. 26, sub-ss. 1 and 3 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 39, para. (d).

Judicial review - Remedies - Discretion of court - Alternative appellate procedure invoked by applicants - Application for review concerning issue of law outside jurisdiction of appellate tribunal - Issue requiring determination by court - No ground for refusing relief.

Local government - Planning - Challenge to validity of decision - Time limit - Proceedings required to be instituted within 2 months of decision - Application for leave to apply for judicial review made within 2 month period - Judge requiring further information and adjourning application - Leave ultimately granted outside 2 month period - Whether application out of time - Local Government (Planning and Development) Act, 1963 (No. 28), s. 82, sub-s. 3A - Local Government (Planning and Development) Act, 1976 (No. 20), s. 42.

Part III of the Local Government (Planning and Development) Act, 1963, provides inter aliathat every planning authority shall make a development plan indicating its development objectives for its functional area. Section 26, sub-s. 1 of the Act of 1963 provides that, in dealing with an application for planning permission, a planning authority shall have regard to the provisions of its development plan. Section 26, sub-s. 3 of the Act of 1963, inserted by s. 39, para. (d) of the Local Government (Planning and Development) Act, 1976, provides that a planning authority may grant permission for a development that would materially contravene its development plan only a her complying with the procedural requirements set out in the sub-section. Section 82, sub-s. 3A of the Act of 1963, inserted by s. 42 of the Act of 1976, provides that any proceedings seeking to challenge the validity of a decision made by a planning authority on an application for planning permission must be instituted within 2 months of the date of the decision.

The notice party applied to the respondent for planning permission in respect of a proposed development in its functional area involving the construction of 19 houses and the reconstruction of an existing mews on a site of 2.54 acres. On the 3rd May, 1990, without invoking the procedures established by s. 26, sub-s. 3 of the Act of 1963, the respondent notified the notice party of its intention to grant permission for the development, subject to a number of conditions which inter aliareduced the number of houses to 17 and prohibited the reconstruction of the existing mews. At all material times, the relevant development plan was that adopted by the respondent in 1984. In the 1984 development plan the site location of the proposed development was categorised "Density Class C" providing a maximum density per acre of 3 "normal houses", which in respect of the location of the proposed development was accepted as not being less than 210 square metres in area. The 1984 development plan also made provision for the development of purpose built flats, allowing a maximum of 4 for each house permissible on the site, subject to a maximum gross floor area of 210 square metres for each house. The plan further provided for "intermediate forms of development" such as maisonettes and mixed flat and house developments, in respect of which a density between that for flats and houses might be allowed. The 1984 development plan also recognised the general trend towards smaller houses and the increasing numbers of people living alone and promised to facilitate the sub-division of existing houses to meet this need.

When notified of the respondent's intention to grant permission for the proposed development, the applicants applied to the High Court for leave to apply for judicial review. They also appealed to An Bord Pleanála. The application was initially made on the 2nd July, 1990, but, the judge having raised certain queries, it was then adjourned to the 27th July, 1990 (more than 2 months after the date of the respondent's decision), on which date liberty to apply for judicial review was granted. Upon the hearing of the application, the applicants contended that the 17 units to be built by the notice party were "houses" within the meaning of the 1984 development plan and that the density of houses for which permission had been given, at 7 per acre, exceeded the 3 per acre maximum provided for in the plan and that, as a result, the proposed development constituted a material contravention of the plan, permission for which required compliance with the provisions of s. 26, sub-s. 3 of the Act of 1963. Alternatively, it was contended by the applicants that, even if the proposed units were considered to be an intermediate form of development, the total gross floor area proposed exceeded the maximum specified in the plan and the proposed development therefore constituted a material contravention of it.

The respondent submitted that the proposed development differed substantially from traditional housing, consisting of units far smaller than the average home in the area and that it constituted an intermediate form of development. It was further submitted that as such, it did not in fact breach the relevant density provisions of the 1984 development plan. The respondent also submitted that as the applicants had a right of appeal to An Bord Pleanála, a specialist statutory body with planning expertise, and as they had in fact exercised that right, the court should in its discretion refuse any relief to the applicants. Finally, the respondent contended that, as leave to apply for judicial review was granted more than 2 months after the applicants were notified of the respondent's intention to grant the disputed permission, the instant proceedings were barred by virtue of s. 82, sub-s. 3A of the Act of 1963.

Held by Barr J., in granting the relief sought, 1, that the issues raised by the application involved the interpretation of the 1984 development plan in the light of the relevant statutory provisions, which were legal issues within the exclusive jurisdiction of the court and outside the competence of An Bord Pleanála.

2. That the fact that the applicants had in fact lodged a notice of appeal to An Bord Pleanála against the disputed permission was not a ground on which the court should exercise its discretion to refuse them the relief sought.

P. and F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 followed.

3. That in seeking to interpret a development plan, the court should ask itself what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.

Dicta of McCarthy J. in In re X.J.S. Investments Ltd.[1986] I.R. 750 and The Attorney General (McGarry) v. Sligo County Council[1991] 1 I.R. 99 followed.

4. That such a person would have to conclude, upon examination of the proposed development, that the proposed units were "houses" within the meaning of the development plan of 1984, which provided for a maximum density of 3 houses per acre.

5. That the density of the proposed development greatly exceeded the density permitted by the 1984 development plan and the purported permission for...