Walsh v Kildare County Council

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 29 July 2000
• Neutral Citation: [2000] IEHC 103
• Docket Number: [ 1999 No. 104 J.R.]
• Court: High Court
• Date: 29 July 2000

[2000] IEHC 103

THE HIGH COURT

No. 104 JR/1999

WALSH v. KILDARE CO COUNCIL

JUDICIAL REVIEW

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)ACTS 1963/ 1993

BETWEEN

PATRICK WALSH

APPLICANT

AND

KILDARE COUNTY COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 33(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 18(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7(1)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(3)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7(1)(d)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7

FREENEY V BRAY URBAN DISTRICT COUNCIL (UDC) 1982 ILRM 29

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 18

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S7(1)

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

CALOR TEORANTA V SLIGO CO COUNCIL 1991 2 IR 267

Synopsis:

Planning

Planning application; judicial review; time limits for decisions of planning authority; material breaches of development plan; applicant seeks default planning permission on basis that respondent did not give notice to applicant of its decision within the appropriate period of two months from receipt of application; whether alleged failure of applicant to specify with sufficient accuracy his address for service of documents had frustrated respondent's attempts to request further information within appropriate time limits; whether, if the address given by an applicant for planning permission is inadequate to afford the planning authority a choice of the full range of options for giving notice, the notice is bad, notwithstanding that the applicant acted in good faith; whether grant of planning permission would involve a material breach of the county development plan, thereby disentitling applicant to a default permission.

Held: Application refused.

Walsh v. Kildare County Council - High Court: Finnegan J. - 29/07/2000 - [2001] 1 IR 483

The applicant had applied to the respondent for planning permission to build a dwelling house. The respondent requested additional information concerning the application pursuant to article 33 of the Local Government (Planning and Development) Regulations, 1994. The respondent had great difficulty in the delivery of the request to the applicant. The request for further information was not issued within the two months period as required by section 27(3) of the Local Government (Planning and Development) Act, 1963. The applicant sought a declaration that he was entitled to a default planning permission pursuant to section 27(3)(a) of the Local Government (Planning and Development) Act, 1963. Finnegan J held that had the applicant given complete details of his address then the respondent would have been able to effect personal service of the correspondence as intended. Accordingly the application for planning permission was bad. In addition had the planning permission been granted it would have involved a material breach of the county development plan. The relief sought would be refused.

1 JUDGMENT of Finnegan J.delivered on the 29th day of July, 2000

2 By agreement in writing dated the 18th August, 1998 made between Patrick Morris Junior of the one part and the applicant of the other part the applicant agreed to purchase part of the lands in Folio 9753 County Kildare and situate at Giltown, Donadea, County Kildare containing in area 0.35 acres ( hereinafter called "the site").Patrick Morris Junior retained the remainder of the lands comprised in the Folio upon which there is a residence and which contains in area 0.178 acres ( hereinafter called "the retainedlands"). That residence is served by a septic tank and percolation area upon the site and within 60 feet of the applicant's proposed dwelling.

3 On the 23rd June, 1998 the applicant applied to the Respondent for planning permission for the erection of a bungalow and garage on the site. However the site notice erected by the applicant was not considered sufficient by the Respondent and by registered letter dated 14th August, 1998 the Respondent requested the applicant to erect a new notice the same to be maintained on site for a period of one month from the date of written notification tothe Respondent that the notice is in place. By letter dated 17th August, 1998 received by the Respondent on the 18th August, 1998 the applicant gave written notification to the Respondent that the new notice had been erected on the 17th August, 1998.

4 The Respondent issued a request for additional information pursuant to Article 33(3) of the Local Government (Planning and Development) Regulations 1994 to the applicant by registered letter dated 16th October, 1998. The letter was in fact posted on the 19th October, 1998 and received by the applicant on the 20th October, 1998. It is common case that the request for further information was not given within a period of two months commencing on the 18th August, 1998 and that the Respondent did not give notice to the applicant of their decision within the appropriate period pursuant to Section 27(3) of the Local Government (Planning and Development) Act 1963that is within the period of two months beginning on the day of the receipt by the Respondent of the applicant's letter dated 18th August,1998.

5 The Local Government (Planning and Development) Regulations 1994 Regulation 18(1) requires that a planning application shall state the name and address and telephone number if any of the applicant and the address to which any correspondence relating to the application shall be sent. The applicant completed a planning application form issued by the Respondent and in response to question six therein gave the name and address to which notification should be sent as Pat Walsh, Ballinagappa, Clane, County Kildare and in response to question 26 therein gave the name and address and telephone number of the applicant as Patrick Walsh, Ballinagappa, Clane, County Kildare 045 861077. The address given is in a rural area and is that of Bernadette Doran and her husband Thomas Doran with whom the applicant had been living since 1993. The registered letter dated 14th August, 1998 hereinbefore referred to is addressed by the Respondent to the applicant in the following terms -

6 "P. Walsh, Ballinagappa, Clane, County Kildare"

7 It was sent by registered post and was received by the applicant. A further registered letter dated 16th October, 1998 similarly addressed was posted by the Respondent on the 19th October, 1998 and received by the applicant on the 20th October, 1998.

8 On the 16th October, 1998 John C. Byrne an Official of the Respondent endeavoured to deliver the letter dated 16th October, 1998 personally to the applicant or by leaving it at the address given either of which methods constitutes the giving of notice pursuant to the Local Government (Planning and Development) Act 1963Section 7(1) (a) and (b). He did not succeed in finding the applicant's residence. He made a further unsuccessful attempt on the 17th October, 1998. Ballinagappa is a townland in the vicinity of Clane and he made general enquiries in Ballinagappa but was unable to ascertain the location of the applicant's residence. He enquired from a Mr. Reilly of Ballinagappa Cross, an elderly resident of the area, but he was unable to assist as to the location of the applicant's residence. He called to other houses in the area for assistance without success. He returned to the Respondent's offices in Naas to check the Respondent's file to see if it contained any information which would assist him in identifying the location of the applicant's residence but without success. It was in these circumstances that he failed to effect service on either the 16th or 17th October, 1998. In support of the application for planning permission Emmett Stagg T.D. wrote to the Respondent on the 23rd June, 1998 and his letter was on the Respondent's planning file. The letter was headed with the applicant's name and address as set out...