The State (Genport Ltd) v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Finlay P
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 2028
• Court: High Court
• Docket Number: No 523 SS/1981
• Date: 01 January 1983

(STATE) GENPORT v. AN BORD PLEANALA

THE STATE AT THE PROSECUTION OF GENPORT LIMITED

.v.

AN BORD PLEANÁLA

1982 WJSC-HC 2028

No 523 SS/1981

THE HIGH COURT

1 Judgment delivered on the 1st day of February 1982 by Finlay P.

2 This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari made on the 19th of November 1981 directed to the Respondents to bring before the court an order made by them on the 4th of November 1981 for the purpose of being quashed. The application came before me on the 19th of January 1982 and was heard on affidavit and I reserved judgment.

3 The facts out of which the application arises are not in dispute on the affidavits before me and may thus be summarised.

4 The Prosecutors are a limited liability company who are the lessees in possession of a premises known as Sachs Hotel situate at Morehampton Road in the City of Dublin. Prior to the 28th day of May 1981 they applied to the Dublin Corporation for permission pursuant to the provisions of the Planning Acts to retain a certain extension to their premises at Sachs Hotel which had been erected without planning permission. This application was refused by a decision made by the Planning Authority on the 28th of May 1981.

5 The Prosecutor employed a firm of Architects and Town Planners, Messrs. Keaney, Quinn and Partners to lodge and prosecute an appeal against this decision to the Respondent Board, and by letter of the 22nd of June 1981 that firm appealed against the decision identifying the decision and the location of the premises concerned in the following words

"Dear Sirs,

I refer to the above decision dated the 28th of May 1981, Ref. PL 394, Beg. No. 1133/81 and wish hereby to lodge formal notice of appeal. Grounds of appeal will be furnished in due course. I enclose a cheque for £10.00."

6 That letter was acknowledged by the Respondents by letter dated the 24th of June 1981 which having acknowledged the letter and the payment of the deposit stated as follows

"Article 36 of the Local Government (Planning and Development) Regulations 1977 requires that the grounds of appeal must be stated when an appeal is made. Accordingly, you are requested to forward a statement of the grounds on which your appeal is based. Unless this statement is received without delay the Board will be obliged to proceed with the determination of the appeal".

7 No reply was made to that letter and a further letter of the 14th of July 1981 was sent under registered post by the Respondents to the Architects as follows

"A Chara,

I have been asked by An Bord Pleanála to refer to the above-mentioned appeal and in particular to your letter of the 22nd of June 1981 in which you indicated that it was intended to make a further submission to the Board about the appeal. If you wish any such submission to be taken into account by the Board in its consideration of the appeal, please forward it to the Board within 14 days from the date of this letter otherwise the Board will be obliged to determine the appeal on the basis of the information available to it."

8 There was no reply to that letter nor were any submissions made on behalf of the Prosecutor within the period of 14 days. On the 6th of August 1981 the Architects wrote to the Board in the following terms

"Dear Sirs,

We refer to the above appeal and wish to advise you that we are withholding detail grounds of appeal as they are still third party objections being received. We will contact you further in due course."

9 That letter was acknowledged by the Board in the following terms

"An Bord Pleanála has received your letter dated the 6/8/"81 relating to function rooms at. Sachs Hotel, the contents of your letter have been noted."

10 In the meantime, objections were apparently received by the Board from third parties and on receipt of each of them or of any letter concerning the appeal a copy of it was transmitted to the Architects who were acting as agents of the Prosecutor, each of them apparently being accompanied by a letter in this form

"Enclosed for your information is a copy of correspondence received from (blank) about the above-mentioned appeal but it is not necessary for you to furnish any comments on the correspondence, you may do so if you wish. Any such comments should be forwarded at an early date if you wish to have them taken into consideration when the appeal is being determined."

11 The dates on which documents or correspondence were transmitted accompanied by such a letter are as follows

12 3rd of July 1981

13 6th of July 1981

14 7th of July 1981

15 15th of July 1981

16 17th of July 1981

17 29th of July 1981

18 6th of August 1981

19 11th of August 1981

20 13th of August 1981

21 20th of August 1981

22 2nd of September 1981

23 9th of September 1981

24 11th of September 1981

25 16th of September 1981

26 5th of October 1981

27 14th of October 1981

28 20th of October 1981

29 22nd of October 1981

30 27th of October 1981

31 No reply was made by or on behalf of the Prosecutor to any of this correspondence nor were any grounds of appeal or submissions ever sent by them to the Board further to the previous correspondence which I have quoted. On the 4th of November 1981, the Board reached a decision refusing the permission sought in the appeal and in effect confirming the order of the Planning Authority. By letter dated the 5th of November 1981 notice of the making of this decision and a copy of it was sent to the Architects acting on behalf of the Prosecutor.

32 A further letter dated the...