The State (McCoy) v Dun Laoghaire Corporation

JurisdictionIreland
JudgeGannon J.
Judgment Date01 January 1985
Neutral Citation1985 WJSC-HC 2447
Docket NumberNo. 621 SS/1983
CourtHigh Court
Date01 January 1985
McCOY v. DUN LAOGHAIRE
(STATE SIDE)
IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 TO 1982
Between/
THE STATE (AT THE PROSECUTION OF PATRICK J. McCOY)
Prosecutor
-and-
THE CORPORATION OF DUN LAOGHAIRE
Respondents

1985 WJSC-HC 2447

No. 621 SS/1983

THE HIGH COURT

Synopsis:

PLANNING

Permission

Duration - Extension - Termination of appropriate period for completion of particular permission - Erection of 36 semi- detached dwellings on site authorised by particular permission - Subsequent permission authorising 18 detached dwelling on site - Detached dwellings erected - Developer then applying for extension of appropriate period for completion of original permission for erection of 36 semi-detached dwellings - Original or particular permission superseded - Application refused by planning authority - Refusal valid although not expressed in precise terms of statutory grounds for refusal - Ground expressed being consistent with a statutory ground - Local Government (Planning 7 Development Act, 1982, s. 4 - 998 No. 621 SS - Gannon J. - 1/6/84).

|The State (McCoy) v. Corporation of Dun Laoghaire|

STATUTORY INTERPRETATION

Power

Exercise - Planning permission - Power to extend duration - Refusal to extend duration - Refusal not expressed in terms of statutory grounds for refusal - Ground expressed being consistent with a statutory ground - Valid refusal - Local Government (Planning & Development) Act, 1982, s. 4 - (1983 No.621 SS - gannon J. - 1/6/84).

|The State (McCoy) v. Corporation of Dun Laoghaire|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) REGS 1982 SI 342/1982

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S11(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1983

1

Judgment of Gannon J. delivered the 1st day of June 1984.

2

The respondents are a planning authority whose decision to refuse an application made pursuant to section 4 of the Local Government (Planning and Development) Act 1982 for an extension of the appropriate period as regards a particular planning permission is the subject of a conditional order of certiorari granted by McWilliam J. on the 28th of October 1983. The grounds upon which the order was made are stated therein to be "the grounds set out in paragraph 16(1)" of the affidavit of the prosecutor Patrick J. McCoy sworn on the 27th of October 1983. That paragraph reads as follows:-

"16. I therefore pray this honourable court for:-"

3

(1) A conditional order of certiorari directing the above named respondents to produce their said decision dated the 1st September 1983 for the purpose of having the same quashed on the grounds that the reason specified therein is bad in law, and further on the grounds that the reason specified therein is not a reason specified in the said section 4 and that the said decision is ultra vires and void."

4

The decision of the respondents was notified to the architects for the prosecutor by the town clerk by notice dated the 1st of September 1983 in the following terms:

"Re Local Government (Planning and Development) Acts 1963to 1983. Application on behalf of Mr. P.J. McCoy, 21 Dundela Park, Sandycove, Co. Dublin, on 5th July 1983 for extension of the permission for 36 dwellings at Dundela Avenue, Sandycove, Co. Dublin granted on 15th March 1962."

5

A decision to refuse your application to extend the appropriate period as regards the above mentioned permission was made on 1st September 1983 for the following reason:-

6

The permission for 36 semi-detached houses was superseded by permissions for a total of 18 detached houses on portion of the site. These detached houses have been constructed. Due to this development, development of the site for 36 semi-detached houses as provided for in reg. no. 330/62 cannot now be carried out."

7

The statutory provisions which prescribe that a permission granted shall cease to have effect were not referred to nor opened on this hearing, but it is agreed that because the permission identified as 330/62/15 March 1967 was granted under part IV of the Local Government (Planning and Development) Act 1963before the 1st of November 1976 it would cases to have effect on the 31st of October 1983 as provided for in section 2 of the 1982 Act. That date is, for the purpose of this application, the end of "the appropriate period" which term, as used in section 4 of the 1982 Act, is defined in section 2 of that Act. Section 4 confers on the respondents power to extend the appropriate period. Whether the conditional order of certiorari should be made absolute as now sought by the prosecutor or cause shown be allowed as submitted by the respondents depends upon the construction and application of sub-section (1) of section 4 of the Local Government (Planning and Development) Act 1982 (hereafter referred to as the 1982 Act).

8

Section 4 (1) of the 1982 Act is as follows:

"4-(1) On an application being made to them in that behalf, a planning authority shall, as regards a particular permission, extend the appropriate period, by such additional period as the authority consider requisite to enable the development to which the permission relates to be completed, if, and only if, each of the following requirements is complied with:"

(a) the application is in accordance with such regulations under this Act as apply to it,

(b) any requirements of, or made under, such regulations are complied with as regards the application, and

(c) the authority are satisfied in relation to the permission that -

(i) the development to which such permission relates commenced before the expiration of the appropriate period sought to be extended, and

(ii) substantial works were carried out pursuant to such permission during such period, and

(iii) the development will be completed within a reasonable time."

9

Subsection (2) of section 4 contains provision for the circumstance of failure or omission on the part of the planning authority to whom application for an extension of the appropriate period has been made to give notice of its decision to the applicant within a period of two months. In such circumstances, provided all the requirements of statute and regulation have been complied with a decision to extend the appropriate period "shall be regarded as having been granted by the planning authority". Sub-section (4) of section 4 provides for the recording in the register of particulars of any such application for extension of the appropriate period and of the decision of the planning authority. The remaining sub-sections (3), (5) and (6) do not contain provisions affecting a decision to not extend the appropriate period.

10

Sub-section (1) of section 4 of the 1982 Act is expressed in mandatory terms bearing both positive and negative aspects. It confers on a planning authority not merely the power but rather the obligation to extend the duration of a planning permission in relation to uncompleted development upon which a developer has embarked. The "appropriate period" is a limitation created by section 2 of the 1982 Act on the duration of a planning permission, the existence of which and the relaxation of which are in the interests of good control and supervision of planning and development. The negative aspect of the mandatory nature of this sub-section is in the use of the expression "if, but only if," as controlling the obligation to extend the duration of the permission to enable the development to be completed. Clearly the planning authority must not extend the duration of the particular permission save upon compliance with all of the conditions set out in sub-paragraphs (a), (b) and (c) (i), (ii) and (iii). The sub-section refers to the permission as "a particular permission" thus ensuring that in considering any application the planning authority will deal with it on its own facts and circumstances and not as being governed by considerations given to another or a group of other development provisions. The qualified description "a particular permission" gives recognition also to the facts that there may be more than one contemporaneous permission granted to one developer for development of the same structure or other lands and that there may be more than one developer to whom permissions have been granted in relation to the same structure or other lands. The expression "particular permission" has significance also for the developer or applicant for a decision under section 4. It signifies that the permission must be distinguished from other permissions whether relating to the development of the same structures or other land or relating to other developments. To give this expression its proper meaning in the context of development it must mean that the entire development, and all the conditions (if any) the subject matter of the permission, and all the material statements or matters in relation to which the permission was granted are comprehended within the term "particular permission" with none omitted and no others included.

11

Section 11 of the 1982 Act empowers the Minister to make regulations providing for any matter of proceedure in relation to applications under section 4 of the Act, and also enumerates particular aspects of such applications for which special requirements may be made by such regulations. It follows that in relation to compliance with conditions...

To continue reading

Request your trial
11 cases
  • Garden Village Construction Company Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 1 d5 Outubro d5 1993
    ... ... LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4(2) ABENGLEN, STATE V BORD PLEANALA 1982 ILRM 590 LOCAL GOVT (PLANNING & DEVELOPMENT) ... ...
  • Lackagh Quarries Ltd v Galway City Council
    • Ireland
    • High Court
    • 21 d2 Dezembro d2 2010
    ...amounted to adequate alternative remedy - Conduct of applicant - Discretionary remedy - State (McCoy) v Dun Laoghaire Corporation [1985] ILRM 533; Lavole and Carvida Limited v District Judge O'Donnell [2007] IESC 35, [2008] 1 IR 651; John A Wood Limited v County Council of the County of Ker......
  • Merriman v Fingal County Council
    • Ireland
    • High Court
    • 21 d2 Novembro d2 2017
    ...in a judgment that involves a useful analysis of certain applicable case-law. Per Finnegan P: 'The first relevant case is State (McCoy) v Dun Laoghaire Corporation 1985 ILRM 533. In relation to section 4(1) of the 1982 Act Gannon J. said— "Section 4(1) of the 1982 Act is expressed in manda......
  • Littondale Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 10 d3 Julho d3 1996
    ...it is necessary to analyse Section 4 of the 1982 Act. As was pointed out by Gannon J. in State (McCoy) -v- Dun Laoghaire Corporation, (1985) I.L.R.M. 533 at page 535, Section 4(1) is expressed in mandatory terms bearing both positive and negative aspects. The word "shall" connotes that a p......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT