White v Dublin City Council

• Jurisdiction: Ireland
• Judge: Justice Aindrias Ó Caoimh
• Judgment Date: 21 June 2002
• Neutral Citation: [2002] IEHC 68
• Date: 21 June 2002
• Docket Number: Record No. 492 J.R/2000
• Court: High Court

WHITE v. DUBLIN CORPORATION & TRACEY

JUDICIAL REVIEW

Between:

MAUD WHITE and MICHAEL WHITE

Applicants

-and-

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND

BURGESSES,

OF THE CITY OF DUBLIN, IRELAND and THE ATTORNEY GENERAL

Respondents

KEVIN TRACEY

Notice Party.

[2002] IEHC 68

Record No. 492 J.R/2000

THE HIGH COURT

Abstract:

Planning and environmental law - Planning permission - Time limits - Revised drawings submitted to local authority - Planning permission granted - Whether revised application substantially different to original application - Whether revised application should have been re-advertised or subject to a fresh site notice - Whether time limit deprived applicant of notice of proposed development and of opportunity to make representations thereto - Whether two month time limit in the absence of any saver for bringing proceedings contrary to reason and fairness - Whether time limit constituted an unjust attack on applicant's constitutional rights - Local Government (Planning and Development) Regulations, 1994 SI 86/1994 article 35 - Local Government (Planning and Development) Act, 1963 section 82(3B)(a).

Facts: the applicants were neighbours of the notice party who had applied for planning permission which was refused in 1999 by the respondents. The notice party then submitted a fresh application to the respondents which was granted in 2000 but which had never been notified to the applicants nor had it been the subject of any fresh site or other public notice. The applicants complained that the revised drawings submitted by the notice party showed alterations which went beyond mere modifications and materially altered the form and appearance of the development and in light of those changes that the respondent should have required the notice party to publish notices to that effect. It was submitted that the decision not to direct fresh notices under the article 35 procedure was wanting in procedural fairness and was one which deprived the applicants of a right to object to the then proposal. The respondents submitted that relief should be refused as the applicants had not brought their application within the two month time limit provided for in section 82(3B)(a) of the Act of 1963.

Held by Ó Caoimh J in granting the relief sought that the use of the term "modifying" in article 35 of the regulations suggested changes of a limited nature such that any changes would be slight or partial so as not to call for any necessity to re-notify a planning application. However, no reasonable planning authority could have come to the conclusion that no fresh notification was required under article 17(32) of the 1994 regulations without seriously undermining the objectives of the planning code and in particular that requiring public consultation as the modifications invited by the respondent under article 35 resulted in significant changes to the original proposal. Accordingly, the applicants had advanced grounds that, if not debarred by the time limits in section 82 of the Act of 1963, they were entitled to have the decision in question quashed. The applicants did not become aware of the impugned decision until the period of two months provided for in section 82(3B)(a) of the Act of 1963 had already expired and this fact resulted directly from the failure of the respondent to direct the modifications invited by the planning authority under the article 35 procedure to be subject of further notice to be given by the notice party. The limitation period, in the absence of any saver, was so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it had to be considered to be unreasonable and therefore unconstitutional as the decision of the Oireachtas in enacting the impugned provision was a decision which could not be supported by just and reasonable policy decisions.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 35

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 23(1)

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

DUNNE V DUBLIN CO COUNCIL 1974 IR 45

CORDAUN HOMES V KILDARE CO COUNCIL 1983 ILRM 1

EAST DONEGAL CO-OP V AG 1970 IR 341

O'KEEFE V BORD PLEANALA 1993 1 IR 63

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 17(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 17(1)(C)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 17(2)

IRISH HARDWARE ASSOCATION V SOUTH DUBLIN CO COUNCIL & BARKHILL LTD UNREP HIGH 19.7.2000 2000/11/4196

IRISH HARDWARE ASSOCATION V SOUTH DUBLIN CO COUNCIL & BARKHILL LTD 2001 2 ILRM 291

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 15

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 30

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 34

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 17(32)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(A)(I)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(A)(I)

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

CAHILL V SUTTON 1980 IR 269

LOCAL GOVT PLANNING & DEVELOPMENT ACT 2000

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 135

HEGARTY V O'LOUGHRAN 1990 1 IR 148

TUOHY V COURTNEY 1994 3 IR 1

STATUTE OF LIMITATIONS ACT 1957 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

CONSTITUTION ART 34

1 Justice Aindrias Ó Caoimh delivered the 21st day of June 2002.

2 The applicants are next door neighbours of the notice party who applied for planning permission to the respondents in June, 1999 for a "new two storey over attic, single family dwelling" in the back garden area of the house at 11 Park Lane, Chapelizod, Dublin next to that occupied by the applicants at 10 Park Lane. These premises are adjacent to the Phoenix Park.

3 In November, 1996 the applicants obtained planning permission in 1996 for an extension and conservatory to their house. The extension was designed not to overlook their neighbours. Two of the extension windows overlook the notice party's property at an oblique angle-one being an opaque bathroom window while the other is a landing window which overlooks a car space. The windows look out the front of the applicants' property and do not impinge on the notice party's privacy. Thereafter the applicants obtained a further planning permission for a larger conservatory which was obtained after consultation with the notice party in circumstances where no objection was raised by the notice party.

4 In June, 1999 an initial application was made by the notice party to the first respondent (hereinafter referred to as Dublin Corporation) and the notice party informed the second applicant at the time of the application. He showed the plans to the second applicant and drew attention to the fact that east elevation of the proposed dwelling and indicated that the proposal was that there would be no windows on that elevation overlooking the applicants' property and to the south elevation which was to have two windows nearest to the applicants' property which windows would contain obscure glass.

5 At this time the second applicant consulted his architect who informed him that while the proposed property was higher than the applicants' property that it would not overshadow or overlook the applicants and that in any event it was unlikely that the notice party would get planning permission. In light of these facts and in the interest of maintaining neighbourly relations the applicants did not object to the proposed development.

6 It appears that at the time the notice party informed the second applicant that he had been assured in discussion with the Planning Department of Dublin Corporation that he would get planning permission.

7 In fact the notice party was refused planning permission in August, 1999 and thereafter submitted an appeal to An Bord Pleanála and soon thereafter on the 17th September, 1999 submitted a fresh planning application to Dublin Corporation for a proposal which was very similar to that made in June, 1999 and in respect of which planning permission had been refused. The second applicant was informed of the nature of the second application by a neighbour and in light of this fact he did not personally inspect the planning file at that time or at any time thereafter until in or about the 27th May, 2000 when he learned for the first time that the notice party had been granted planning permission for a radically different development.

8 The development in respect of which planning permission issued to the notice party was for what the applicants describe as a three storey house. The essential difference to the development as opposed to that in respect of which the planning permissions had been applied for were that the east elevation contained 6 windows and there were two windows on the north elevation with side bays facing east, 5 of which would overlook the applicants' conservatory and garden.

9 It transpired on inspection of the planning file on the 29th May 2000 that fresh plans had been submitted to Dublin Corporation by the notice party and this had never been notified to the applicants or had been the subject of any fresh site notice or other public notice.

10 On the 31st May, 2000 the second applicant spoke to the notice party who informed him that Dublin Corporation had forced him to change the plans but he had kept his word. He indicated the nature of the fresh planning permission which had been sought in September, 1999. The second applicant expressed his concern that he had not been notified at any time by the notice party or otherwise of the revised drawings that had been submitted to Dublin Corporation. He had spoken to the notice party in or about the 21st February, 2000 and on approximately 5...