The State (Murphy) v Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 18 August 1970
• Date: 18 August 1970
• Docket Number: [1969. No. 114 SS.]
• Court: High Court

The State (Murphy) v. Dublin C.C.

THE STATE (at the Prosecution of JOHN F. MURPHY)

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

[1969. No. 114 SS.]

Local Government - Planning - Notice - Point in time at which notice was given - Statutory requirement that planning authority should "give notice" to applicant of authority's refusal of planning permission - Notice in writing sent to applicant by post - Whether notice given on date of posting or on date of receipt - Interpretation Act, 1937 (No. 38 of 1937), s. 18 - Local Government (Planning and Development) Act, 1963 (No. 28 of 1963), ss. 7, 26 (4).

Section 26 (4) of the Local Government (Planning and Development) Act, 1963, provides that, where a proper application has been made to a planning authority for permission to develop lands and the planning authority do not"give notice" to the applicant of their decision within the relevant period of time, a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period. The respondents, as a planning authority, sent to the prosecutor by registered post a written notice of the respondents' decision to refuse the prosecutor's application for permission to develop certain lands. The notice was posted on a Friday; the following Sunday was the last day of the relevant period within s. 26 (4) of the Act of 1963; and the notice was delivered to the prosecutor's agent on the following Monday because the office of the agent, being the address given by the prosecutor for the service of notices, was not open for business on the intervening Saturday when the notice would have been delivered in the ordinary course of post. Having obtained a conditional order of mandamusin the High Court in order to compel the respondents to grant the required permission, the prosecutor brought a motion for an order absolute notwithstanding the cause shown by the respondents. At the hearing of the motion the prosecutor submitted that the respondents had not given him notice of their decision within the relevant period of time and that, accordingly, a decision by them to grant the permission should be regarded as having been given on the Sunday.

Held by O'Keeffe P., in allowing the cause shown and discharging the conditional order, 1, that the provisions of s. 18 of the Interpretation Act, 1937, were not involved in the resolution of the issue concerning the point of time at which the respondents gave notice of their decision to the prosecutor.

2. That the respondents had given the prosecutor notice of their decision by posting the notice on the Friday in a prepaid registered letter addressed to the prosecutor's agent as authorised by s. 7, sub-s. 1, of the Act of 1963.

• R. v. County of London Quarter Sessions Appeals Committee; Ex parte Rossi

[1956] 1 Q.B. 682, and

Moody v. Godstone Rural District Council [1966] 1 W.L.R. 1085 considered.

Mandamus.

On the 23rd June, 1969, the prosecutor, John F. Murphy, applied to the High Court (Murnaghan J.) and obtained a conditional order of mandamus commanding the respondents according to their duty under s. 26, sub-s. 9, of the Act of 1963 to grant permission for the prosecutor to develop certain lands, unless cause were shown to the contrary. The respondents showed cause by filing affidavits in which they averred that they had given the prosecutor due notice of their decision to refuse him permission to develop his lands. The prosecutor then applied by motion on notice for an order absolute, notwithstanding the cause shown. The proceedings were entitled in the Matters of the Local Government (Planning and Development) Act, 1963, and the Courts of Justice Acts, 1924-1961, and the Courts (Supplemental Provisions) Act, 1961.

Cur. adv. vult.

O'Keeffe P. :—

This is an application by the prosecutor to make absolute, notwithstanding cause shown, a conditional order of mandamus which was made on the 23rd June, 1969, commanding the respondents to make, under sub-s. 9 of s. 26 of the Local Government (Planning and Development) Act, 1963, the grant of a planning permission in respect of certain lands referred to in an application which had been submitted on behalf of the prosecutor on the 11th November, 1968, and which had been received by the respondents on...