Wicklow County Council v Forest Fencing Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 13 July 2007
• Neutral Citation: [2007] IEHC 242
• Court: High Court
• Date: 13 July 2007

Wicklow County Council v Forest Fencing Ltd T/A Abwood Homes & Smullen

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF ORDER 56

OF THE RULES OF THE CIRCUIT COURT AND IN THE MATTER OF AN APPLICATION BY THE COUNTY

COUNCIL OF THE COUNTY OF WICKLOW

BETWEEN/

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

APPLICANT/RESPONDENT

AND

FOREST FENCING LIMITED TRADING AS ABWOOD HOMES AND GEORGE SMULLEN

RESPONDENTS/APPELLANTS

[2007] IEHC 242

[No. 378CA/2004]

THE HIGH COURT

Abstract:

Planning and environmental law - Injunction - Planning permission - Default planning permission - Circumstances under which default planning permission may be granted - Variation of development from permission - Development plan - Whether development materially contravening provisions of development plan - Exercise of judicial discretion - Whether injunction restraining development should be granted - Planning and Development Regulations 2001, article 33 - Planning and Development Act 2000, sections 34(8), 160

The respondent had applied for planning permission for a development in respect of which the applicant had served a notice for information under article 33 of the Planning and Development Regulations 2001, to which the respondent had never replied. No decision had been made on the planning application by the applicant. The respondent commenced development of the site and the Circuit Court granted an injunction pursuant to section 160 of the Planning and Development Act 2000 restraining the development. The respondent appealed to the High Court. The respondent contended that it had obtained default planning permission as no decision had been made by the applicant within the statutory time limit. The applicant stated that as the respondent had never replied to the notice for information, the application had lapsed and that as the site had been developed in contravention of the area development plan, no default permission could, in any event, arise.

Held by Mr Justice Charleton in granting the injunctions sought:

That once a genuine request was made for further information under article 33 which accorded with the statutory purpose of allowing the planning authority to enable it deal with the planning application, the time limit after which default permission came into operation was suspended pending receipt of the information from the developer.

That an administrative body could not abuse its position by causing time limits to be apparently suspended through the abuse of a legitimate procedure, however, a party seeking to impugn the validity of a request for further information under article 33 of the Regulations of 2001 bore the burden of proving that that statutory power had not been exercised in good faith for the purpose for which it had been granted.

That, under article 26(3) of the Regulations of 2001, an application for planning permission should be rejected if it was incomplete on receipt but where two parties to a decision acted by agreement on a basis which was not in strict compliance with the law, an estoppel could be set up.

That a decision to grant planning permission in respect of a development which would materially contravene the development plan could not be made by default.

That a material contravention of a development plan could be shown where the development in question was of a nature, or was on such a scale, that made it likely that the planning authority would refuse permission for development for reasons that were based predominantly on the development plan.

That, whilst planning permissions should be interpreted with some degree of flexibility so as to allow for the practical reality that buildings could sometimes not be built precisely as the plans indicted, the measure of tolerance allowed was in respect of immaterial deviations and the fact that the manner in which the site was developed was a material deviation from the plans as originally submitted to the applicant, was also a relevant factor to the exercise of judicial discretion as to whether an injunction under section 160 of the Act of 2000 should be granted, the balancing of that discretion having to start with the duty of the court to uphold the principle of proper planning for developments.

Reporter: P.C.

1 1. In this case, Wicklow County Council seek injunctions under s. 160 of the Planning and Development Act 2000 to put an end to a development near the N11 roadway that the developers claim is authorised by a default planning decision. Injunctions under that section, which arise on two different motions claiming a total of eight different infringements of the planning code, were granted by the Circuit Court in Wicklow, through Judge McCartan, on the 10th February, 2004, but were stayed by reason of an appeal to this Court.

2 2. The developments in question are at a place called Timore Lane, which is near the village of Newtownmountkennedy and stretch over an area of just under three hectares to the eastern side of the N11 roadway. The activity carried on by the developer used to be to the western side of that road and it was by reason of the relocation of the N11 route that the respondents, who are the appellants in this case, Forest Fencing Limited and others, had to make some readjustments of their business. They claim that they have a default decision to develop the site as a factory, display area, storage area, car parking area and a general working area for the manufacture, display and sale of various timber products. Wicklow County Council plead that there is no default permission and that there has been a flagrant breach of the Planning and Development Act 2000. Essentially, Wicklow County Council argue that injunctive relief should be granted by the Court because, firstly, no default permission could possibly have been granted as the relevant time period never expired; that, secondly, a default permission cannot be granted, even if time expired in that regard, where a development materially contravenes the planning authority's development plan; and, thirdly, even if there is a default permission and it is not in material contravention of the development plan, the buildings on the ground, and the activities of the developer, were not in conformity with the application which they made for planning permission and in respect of which they now claim a default decision.

3 3. The case therefore raises issues as to the circumstances under which a default permission can be granted under the Planning and Development Act 2000 and as to whether developments carried out in pursuance of a decision, whether default or not, can vary, and if so to what degree, from those specified in the decision to grant permission.

Facts

4 4. Because of the building of the N11, the majority of the buildings previously operated by the respondents/appellants were demolished. Some structures continue to exist on a small area to the far side of the new carriageway. A tiny triangular shaped area also subsists on the site of the new development. The relevant land was compulsorily purchased for the N11 and, I understand from the submissions of counsel, the disruption to the existing business was valued together with the land purchase price at a sum around of €4m. By reason of this dispute between the parties, such portion of that sum as requires to go to arbitration has yet to be decided upon and, in consequence, that amount has yet to be paid. On the very far portion of the site, away from the new N11 road, beside where the old N11 road used to run, there is a small wedge-shaped building to which a default planning permission granted by the Circuit Court in 1994 applies. That permission, however, only covers the activity of sale and display in respect of the relevant products in that area and does not cover office use.

5 5. When one takes out these two tiny portions of the disputed area, which I will consider separately, we find a situation of complete controversy between the parties. As a matter of what is occurring on the ground, I am satisfied from the evidence, including photographs, that the respondents/appellants have built four substantial buildings, one of which is now demolished, leaving three buildings in controversy; have set out an area which has turned a green field site into a large hardcore surfaced display area; have put car parking in a large area which was previously undeveloped; have extended the storage area for timber products along the front of the N11 carriageway, having moved this area from the other end of the site; and have put an advertisement indicating the nature of the activity carried on there in a prominent position on the top of one of the disputed buildings. The respondents/appellants seek to justify all of this on the basis of a default planning decision.

6 6. Wicklow County Council brought the first motion in this case in May, 2003 and the case came on for hearing before the Circuit Court on the 10th February, 2004. Judge McCartan granted the relevant injunctions but allowed time for an application to be made by the respondents/appellants for retention permission. This indulgence was not taken up as, I am told, the respondents/appellants believed that they had a default permission in respect of their development and, as was their right, proposed instead to appeal to the High Court. The second motion in this case was brought on the 12th October, 2004 because what had initially been a development incorporating two new buildings, had by that stage become four new buildings with other major changes to the site. On the 5th November, 2004 Judge McCartan made further orders on the second motion. The result is to effectively condemn the entire of the development. This is an appeal from all those orders.

7 7. Wicklow County Council allege a...