Treacy -v- Cork County Council & Ors, [2009] IEHC 136 (2009)

Docket Number:2006 1043 JR
Party Name:Treacy, Cork County Council & Ors
Judge:Hedigan J.
 
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THE HIGH COURT2006 1043 JR

BETWEEN

SEAMUS TREACYAPPLICANTAND

CORK COUNTY COUNCIL, THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND

AND THE ATTORNEY GENERALRESPONDENTSAND

KIERAN COUGHLAN AND CLAIRE RIORDANNOTICE PARTIES

JUDGMENT of Mr. Justice Hedigan delivered on the 24th day of March, 2009

  1. On 4th 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 leave threshold

  2. The threshold for the grant of leave in the present case is governed by s. 50(4)(b) of the Planning and Development Act 2000, as amended by s. 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.

    Factual background

  3. On 16th March, 2006, the notice parties lodged an application for planning permission with the respondent 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 wastewater treatment units. The notice parties appended a copy of their site notice and a notice placed in the 'Irish Examiner', each of which indicated that submissions or observations could be made to the respondent within five 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 19th April, 2006.

  4. 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 13th 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.

  5. 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.

  6. A grant of permission for the proposed development would be inconsistent with recent previous refusals of planning permission.

  7. The proposed development is inconsistent with the Cork County Development Plan for West Cork - for example see para. 8.17 thereof."

  8. The applicant's secretary faxed the submission on 13th 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 13th April, 2006 and the hard copy on 18th April, 2006. By letter dated 25th 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 19th 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.

  9. The applicant did not seek to challenge the validity of the respondent's decision to declare his submission invalid. Instead, he resubmitted his submission on 4th 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.

  10. Meanwhile, on 25th 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 2nd 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.

  11. As noted above, the respondent granted planning permission to the notice parties in respect of the proposed development on 4th July, 2006. In the decision, it was noted that account was taken of the valid submission made by the Luceys. On 31st July, 2006, the applicant sought to appeal the respondent's decision to An Bord Pleanála. By letter dated 2nd 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 resubmitted appeal had been accompanied by the appropriate acknowledgment.

  12. The hearing of the within challenge took place on 3rd and 4th 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 discontinued with no order as to costs; a number of the grounds were also dropped, as were a number of the reliefs sought.

    The relevant law

  13. The Planning and Development Regulations 2001 implement the Planning and Development Act 2000; they consolidate all previous Regulations made under the Act of 2000, and they replace the Local Government (Planning and Development) Regulations 1994-2000. They came into operation on 21st January, 2002 and 11th March, 2002. Article 29 thereof regulates the making of submissions/observations. Article 29(1)(a) provides as follows:-

    Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of five weeks beginning on the date of receipt by the authority of the application.

  14. Article 29 (1)(b) indicates that submissions should contain the name, address, telephone number and email address of the person making the submission, and should indicate the address to which any related correspondence should be sent.

  15. Article 29(2) provides as follows:-

    "Subject to article 26 [which sets out the procedure that applies upon receipt of a planning application], the planning authority shall acknowledge in writing the receipt of any submission or observation referred to in sub-article 1 as soon as may be following receipt of the submission or observation."

  16. Article 29 (3) of the Regulations provides that where a submission is received by the relevant authority after the expiry of the five-week period set out in Article 29 (1)(a), the authority "shall" return to the person concerned the submission or observation and the fee received and notify the person that their submission or observation cannot be considered by the planning authority.

  17. Article 168 prescribes the payment of a fee for the making of submissions/ observations in respect of planning applications. Article 168 (1) provides:-

    (a) Subject to sub-articles (2) and (3), a fee shall be paid to the planning authority by a person or body who makes a submission or observation to the planning authority regarding an application for permission.

    (b) The amount of the fee payable to the planning authority shall be the amount indicated in column 2 of Section 2 of Schedule 10[…]."

    The...

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