The State (Alf-A-Bet Promotions) v Bundoran U.D.C.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McWililam
• Judgment Date: 01 January 1978
• Neutral Citation: 1975 WJSC-HC 35
• Date: 01 January 1978
• Docket Number: No. 103 S.S./1977

1975 WJSC-HC 35

The High Court

No. 103 S.S./1977

STATE (ALF-A-BET PROMOTIONS LTD) v. BUNDORAN UDC

THE STATE (ALF-A-BET PROMOTIONS LIMITED)

.v.

BUNDORAN URBAN DISTRICT COUNCIL

1 Judgment of Mr. Justice McWililam delivered on the 9th day of May 1977 .

2 This is an application to make absolute a conditional Order of Mandamus directed to the Bundoran Urban District Council (hereinafter described as the Council) commanding the Council to grant planning permission to Alf-A-Bet Promotions Limited (hereinafter described as the Company) in respect of an application for such permission made by letter dated 26th February 1974. The Company claims to be entitled to the grant of permission by reason of the failure of the Council to give notice within the requisite period of its decision to grant or withhold such permission.

3 Sub-section (1) of section 26 of the Local Government (Planning and Development) Act 1963provides as follows:

"Where -"

4 (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and

5 (b) any requirements relating to the application of or made under such regulations are complied with

6 the authority may decide to grant the permission or approval "subject to or without conditions or to refuse it; and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in sub-section (2) of this section."

7 Sub-section (4) of section 26 provides at paragraph (a) as follows:

"Where -"

8 (i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,

9 (ii) any requirements relating to the application of or made under such regulations are complied with, and

10 (iii) the planning authority do not give notice to the applicant of their decision within the appropriate period

11 a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period."

12 Paragraph (b) of sub-section (4) insofar as relevant provides:

"In paragraph (a) of this sub-section "the appropriate period" "means-

13 (i) in case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the planning authority of the application - within the period of two months beginning on the day on which the notice or notices has or have been complied with,

14 (iii) in any other case – within the period of two months beginning on the day of receipt by the planning authority of the application."

15 Clause (ii) of this paragraph is not relevant to the present proceedings.

16 With the present application for an Order of Mandamus is associated an application by the Council to restrain John Coyle, who is in effective control of the Company, from continuing the execution of certain works at the rere of the premises to which the application for the Order of Mandamus relates, on the ground that no planning permission for such works has been obtained. Although I have not been asked to give a decision on this application at the moment, the papers have been put before me and certain aspects of the application have been referred to as relevant to the application for the Order of Mandamus.

17 The circumstances of the present application are as follows:-

18 In November 1973 John Griffin, John Coyle, Jim Gorman and Bernard Drummond decided to go into business in what may be described as the "amusement arcade" line in the seaside town of Bundoran. For this purpose they proposed to purchase a premises in the Main Street which belonged to Irvine John Hamilton and to form a company to be known as Alf-A-Bet Promotions Limited. A contract to purchase was entered into on 28th November, 1973 with Irvine John Hamilton. John Griffin signed this contract as purchaser in trust. Instructions for the formation of the Company were given in January, 1974.

19 From this stage the progress of the enterprise became much less smooth, and some of the irregularities by both parties in dealing with the matter have led to the present proceedings.

20 For whatever reason, the Company was not incorporated until 28th October 1976. Notwithstanding this, Messrs M.A. Doherty & Associates, Architects, wrote to the Council's Town Clerk on 26th February 1974 in the following terms:-

21 (This letter is attached to this Judgment)

22 My attention has been drawn to some features of this letter as being relevant to these proceedings. The reference at the top of the letter refers to "change of use of premises, for "Messrs Alf-A-Bet Limited, Secretary Jim Gorman"; although the purpose of the letter is clear, no actual application of any sort is made; Alf- A-Bet is stated to be the owners of the property; the second paragraph of the letter contains detailed statements of alterations proposed and, by reference to the plans submitted, indicates some form of development proposed for the future at the rare of the premises.

23 The statutory notice in the window was in the following terms:-

24 "LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT, 1963. Application is being made to Bundoran Urban District Council by Messrs Alf-A-Bet Limited, Jim Gorman, East End, Bundoran, for permission to change the use of this building to an amusement arcade and make alterations necessary."

25 On 18th April, 1974, a certificate for the issue of a gaming licence was granted at Ballyshannon District Court in spite of opposition by the Council. Subsequent applications were not opposed by the Council. The original application appears to have been made in the name of James Gorman and the subsequent applications in the name of John Coyle.

26 On 22nd April, 1974, a letter dated 19th April, 1974, (a Friday) from the Town Clerk's office was posted to Mr. Irvine Hamilton, Main Street, Bundoran, referring to "your application" for permission in respect of development and requesting certain information as set out in the schedule to the letter.

27 If this notice was adequate it would have postponed the operation of section 26(4) (a) (iii) of the Act of 1963 until it had...