Treacy v Cork County Council and Others
| Jurisdiction | Ireland |
| Judge | MR JUSTICE HEDIGAN, |
| Judgment Date | 24 March 2009 |
| Neutral Citation | [2009] IEHC 136 |
| Court | High Court |
| Date | 24 March 2009 |
[2009] IEHC 136
THE HIGH COURT
BETWEEN
AND
AND
PLANNING & DEVELOPMENT ACT 2000 S50(4)(B)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29
PLANNING & DEVELOPMENT ACT 2000 S127(2)(A)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(1)(A)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(1)(B)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(2)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(3)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 168
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 168(1)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 168(2)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 168(3)
PLANNING & DEVELOPMENT ACT 2000 S246(1)(B)
PLANNING & DEVELOPMENT ACT 2000 S246(4)
PLANNING & DEVELOPMENT ACT 2000 S50(4)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(1)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 26(3)
PLANNING & DEVELOPMENT ACT 2000 S127
PLANNING & DEVELOPMENT ACT 2000 S127(1)(F)
PLANNING & DEVELOPMENT ACT 2000 S127(1)
R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE JEYEANTHAN 2000 1 WLR 354 1999 3 AER 231
HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP SUPREME 2.5.2008 2008 IESC 27
MIN FOR JUSTICE v F (J B) 2006 3 IR 411 2006/40/8483 2006 IEHC 191
MCCARTHY & DENNEDY v GARDA SIOCHANA COMPLAINTS TRIBUNAL & ORS 2002 2 ILRM 341 2002/19/4881
MAYE v SLIGO BOROUGH COUNCIL 2007 4 IR 678 2007/39/8174 2007 IEHC 146
CALOR TEO v SLIGO CO COUNCIL 1991 2 IR 267 1991/11/2646
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S10(2)
OPENNEER v DONEGAL CO COUNCIL 2006 1 ILRM 150 2005/49/10206 2005 IEHC 156
MAHER v BORD PLEANALA 1993 1 IR 439 1993 ILRM 359 1992/8/2397
RSC O.84 r21
HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917 2005 IEHC 344
R v NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL, EX PARTE MOSES 2000 ENV LR 443
R v BRISTOL CITY COUNCIL, EX PARTE ANDERSON 1998 PLCR 314
CAHILL v SUTTON 1980 IR 269
LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401 1998/23/8916
HYNES v BORD PLEANALA & GALWAY CORP & ORS UNREP LAFFOY 10.12.1997 1998/7/2169
DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484
O'BRIEN v MORIARTY 2006 2 IR 221 2005 2 ILRM 321 2005/45/9458 2005 IESC 32
RSC O.84 r20(4)
O'BRIEN v DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006/44/9478 2006 IEHC 177
CUMANN THOMAS DAIBHIS v SOUTH DUBLIN CO COUNCIL UNREP O'NEILL 30.3.2007 2007/13/2621 2007 IEHC 118
MAHER v BORD PLEANALA 1993 1 IR 439 1993 ILRM 359 1992/8/2397
PLANNING AND ENVIRONMENTAL LAW
Judicial review
Leave - Planning permission - Locus standi - Substantial interest in planning permission sufficient to challenge decision to grant planning permission - Whether applicant having substantial interest for leave to seek judicial review to be granted - Planning and Development Regulations 2001 (SI 600/2001), reg 29 - Planning and Development Act 2000 (No 30) - Harding v An Bord Pleanála [2008] 2 ILRM 251 and Cumann Thomas Daibhis v South Dublin County Council [2007] IEHC 118 (Unrep, O'Neill J, 30/3/2007) considered - Leave to apply for judicial review refused (2006/1043JR - Hedigan J - 24/3/2009) [2009] IEHC 136
Treacy v Cork County Council
On 4 th July, 2006, the notice parties herein were granted planning permission by Cork County Council ("the respondent") in respect of a proposed development at Colla in Schull, County Cork. The applicant is seeking leave to apply for judicial review by way of certiorari of the respondent's decision to grant planning permission to the notice parties; he is also seeking three related declarations.
The threshold for the grant of leave in the present case is governed by section 50(4)(b) of the Planning and Development Act 2000, as amended by section 50A(3) of the Planning and Development (Strategic Infrastructure) Act 2006. The Court must therefore be satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.
On 16 th March, 2006, the notice parties lodged an application for planning permission in respect of a proposed development on their site at Colla. This involved the demolition of structures that are currently on the site, and the construction of three dwellings and related waste water treatment units. The notice parties appended a copy of their site notice and a notice which was placed in the Irish Examiner, each of which indicated that submissions or observations could be made to the respondent within 5 weeks of the date of receipt of the application for planning permission, upon payment of a fee of €20. This meant that submissions could be made to the respondent until 19 th April, 2006.
The site in respect of which the notice parties sought planning permission is immediately adjacent to a holiday home owned by the applicant, who resides in Northern Ireland. On 13 th April, 2006, the applicant and his wife made a submission to the respondent seeking to register their objection "in the strongest possible terms" to the proposed development. The submission continued as follows:-
"We have seen a copy of the objections lodged by Pat and Susan Lucey to the above planning application. We adopt their objections in their entirety."
The Luceys' objections were annexed to the applicant's submission, which added the following three objections:-
"1. We understand that the Applicant is a well-known property developer who, it is apparent from the plans, is squeezing three properties into the smallest possible sites. It is obvious that these applications are a "stalking horse" for a more substantial development application in the future.
A grant of permission for the proposed development would be inconsistent with recent previous refusals of planning permission.
The proposed development is inconsistent with the Cork County Development Plan for West Cork - for example see para. 8.17 thereof."
The applicant's secretary faxed the submission on 13 th April, 2006 to the offices of the respondent and sent a hard copy thereof by post on the same day; the applicant was not in Belfast at the time. The fax was received by the respondent on 13 th April, 2006 and the hard copy on 18 th April, 2006. By letter dated 25 th April, 2006, the respondent acknowledged receipt of the applicant's submission and returned it to him, indicating that it was invalid as it was not accompanied by the appropriate €20 fee. That letter did not advert to the fact that the five-week time limit set by Article 29 of the Planning and Development Regulations 2001 ( S.I. No. 600 of 2001) for the making of a submission had expired on 19 th April, 2006. Instead, it informed the applicant that if he wished for his submission to be taken into consideration, he should "return same with the full fee of €20.00 within 5 weeks of 16/3/06, the date of receipt of the application." The applicant was informed that if his submission was not received before that date, it would be considered invalid and returned to him.
The applicant did not seek to challenge the validity of the respondent's decision to declare his submission invalid. Instead, he re-submitted his submission on 4 th May, 2006, enclosing the fee, this notwithstanding that the five week time-limit had expired a fortnight earlier. Thereafter, the respondent indicated to him that the five week time-limit had passed and that it could not therefore accept the submission.
Meanwhile, on 25 th April, 2006, Seán Taylor, an Executive Planner with Cork County Council, compiled a report stating that the submission made by the Luceys was valid. By letter dated 2 nd June, 2006, an architect acting on behalf of the notice parties informed the respondent that there had been meetings between the Luceys and the notice parties, and that the Luceys' concerns had been taken into account and the notice parties' drawings had been revised accordingly. On the same day, the Luceys informed the respondent that they were not raising objections to the proposed development, as amended.
As noted above, the respondent granted planning permission to the notice parties in respect of the proposed development on 4 th July, 2006. In the decision, it was noted that account was taken of the valid submission made by the Luceys. On 31 st July, 2006, the applicant sought to appeal the respondent's decision to An Bord Pleanála. By letter dated 2 nd August, 2006, the applicant was informed that his appeal was invalid in accordance with section 127(2)(a) of the Planning and Development Act 2000 as it was not accompanied by an acknowledgment by the planning authority of receipt of a submission on the application for planning permission; the applicant was further informed that the acknowledgment that he had submitted "did not relate to a valid submission made in accordance with article 29 of the Planning and Development Regulations 2001." He was also notified that the time period to lodge a valid appeal (i.e. four weeks from the date of the planning decision) had expired; thus, it is clear that he would not have been able to bring his appeal even if his re-submitted appeal had been accompanied by the appropriate acknowledgment.
The hearing of the within challenge took place on 3 rd and 4 th July, 2008. At the end of the first day, the applicant's case against the second, third and fourth named respondents ("the State respondents") was...
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