Wood Ltd v Kerry County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Smyth
• Judgment Date: 31 October 1997
• Neutral Citation: [1997] IEHC 168
• Court: High Court
• Date: 31 October 1997

[1997] IEHC 168

THE HIGH COURT

No. 208JR/1995

No. 46 MCA/1996

WOOD LTD v. KERRY COUNTY COUNCIL

BETWEEN

JOHN A. WOOD LIMITED

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNCIL OF KERRY

RESPONDENT

AND

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING

AND DEVELOPMENT) ACT, 1976 AS SUBSTITUTED BY SECTION 19 (4)(g) OF THE

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1992 AND

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE

COUNTY OF KERRY

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF KERRY

APPLICANT

AND

JOHN A WOOD LIMITED

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(10)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2(5)(b)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2(2)(a)(ii)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(j)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 PART VI REG 80

MCCOY, STATE V DUN LAOGHAIRE CORPORATION 1985 ILRM 533

FRENCHURCH PROPERTIES LTD V WEXFORD CO COUNCIL 1992 2 IR 268, 1991 ILRM 769

GARDEN VILLAGE CONSTRUCTION CO LTD V WICKLOW CO COUNCIL 1994 2 ILRM 354 & 527

LITTONDALE LTD V WICKLOW CO COUNCIL 1996 2 ILRM 519

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(h)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(2)(d)

Synopsis

Planning

Planning permission; judicial review; injunction; gravel extraction; outline planning permission granted for the extraction of gravel at a site, subject to certain conditions; permission expired; seven years later, application for extension of the planning permission refused; judicial review proceedings brought challenging this refusal; applicant then claimed planning permission not necessary; planning authority issued warning notice in relation to unauthorised development of land; third parties raised objections to the unauthorised use; whether there were "substantial works" within the meaning of s. 4, Local Government (Planning and Development) Act, 1982; whether respondent's reasons for refusing extention were valid; whether development was carried out before the date of expiration of the planning permission; whether there was an excessive gap in time between the expiry of the permission and the application for extension; whether prejudice to third parties could be a ground for refusing to extend planning permission; whether there was a time limitation upon the planning permission; s. 26, Local Government (Planning and Development) Act, 1976; s. 27, Local Government (Planning and Development) Act, 1976 (as substituted by s. 19(4)(g), Local Government (Planning and Development) Act, 1992); ss. 2 and 4, Local Government (Planning and Development) Act, 1982; Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994) Part VI, Regulation 80

Held: Application for judicial review dismissed; s. 27 order granted

John A. Wood Ltd. v. Kerry County Council - High Court: Smyth J. - 31/10/1998

The outline planning permission was granted to the Company with conditions which were not complied with before any alleged development pursuant to the said permission was commenced and therefore the permission was of no effect and any works should be disregarded for the purposes of an application to extend time pursuant to section 4 of the 1982 Act. The High Court so held in dismissing the Company's application for judicial review and making an order in terms of paragraphs 1, 2 and 3 of the Council's notice of motion.

1 JUDGMENT of Mr. Justice Smyth delivered the 31st day of October 1997

2 These two inter-related sets of proceedings deal with substantially the same subject matter. For ease of reference I shall refer to the first set of proceedings as "the JR proceedings" and the second set of proceedings as "the S.27 application"; I shall refer to the County Council of the County of Kerry as " the Planning Authority" and John Wood Limited/John A. Wood Limited as "the Company". These proceedings are concerned with the application and interpretation of the Local Government (Planning and Development) Acts. 1963– 9312, which when referred to herein, will be so by reference to the year of the Act rather than by full title. The proceedings were heard consecutively in the order of their issue.

3 I find the following facts to be either agreed or proven on the Affidavits filed in both the J.R. proceedings and the Section 27 application but I am mindful of the differences of the reliefs claimed and the degree of proof required in the respective proceedings:-

4 1. By letter dated 16th June, 1980 the Company sought planning permission from the Planning Authority in respect of the extraction of gravel at Minish, Carrigeencullia and Ballahacommas, Killarney, Co. Kerry as outlined on plans received by the Planning Authority on 18th June, 1980. The terms of this letter are as follows:

"Please find enclosed our planning application for extraction of gravel from the areas marked 1, 2, 3 and 4 on the enclosed maps. Areas No. 1 and 2 are immediately adjoining our existing works at Clasheens and Minish in Killarney.

Areas No. 3 and 4 are immediately adjoining land marked No. 6 for which planning permission was granted on 6th of July, 1979. The planning register reference number, for this area is 695/79.

These areas of gravel-bearing land are part of our long term planning for our Killarney operations. We are unlikely to have commenced operations in each of the areas marked 1,2,3,4 and 6 within five years. Should you have any queries on the above, please contact me.

Yours sincerely,

for J.A. Wood Limited

BRIAN COFFEY

DIRECTOR"

5 2. On 12th August, 1980 the Planning Authority issued a notification of its decision to grant outline planning permission (subject to conditions) to the Company.

6 3. The decision of the Planning Authority was the subject of a third party appeal to An Bord Pleanala.

7 4. On 27th October, 1981 An Bord Pleanala decided to grant outline permission, subject to inter alia the following conditions:-

8 2 "3. Access to sites Nos. 1 and 2 in the townland of Minish shall be via the existing to site No. 5. Access to site No. 3 in the townland of Carrigeencullia and site No. 4 in the townland of Ballaghcommane shall be via the proposed access to site No.6, details of which access shall be submitted for approval.

9 4. Before development commences, the developer shall pay to Kerry County Council a contribution towards any expenditure incurred or proposed to be incurred by the Council in maintaining the public road to serve sites 3 and 4. The amount to be paid and the time and method of payment shall be agreed between the developer and the said Council or in default of an agreement shall be as determined by An Bord Pleanala.

10 5. Before the development is commenced security by means of a bond or cash deposit shall be given to the Planning Authority by the developer to ensure the satisfactory completion of all the restoration and landscaping works necessary to reinstate the land to the satisfaction of the Planning Authority, or in the event of disagreement An Bord Pleanala. The amount to be paid, the time and method of payment shall be agreed between the developer and the Planning Authority, or failing agreement shall be determined by An Bord Pleanala."

11 5. On 14th January. 1982 the Planning Authority received an application for planning approval from the Company. Several of the requirements of the outline permission arising from conditions 1, 2 and 3 were not addressed by the Company. This fact was drawn to the attention of the Comparny by letter dated 10th.March, 1982 from the Planning Authority.

12 6. On 26th March, 1982 the Company made reply and forwarded drawings 125/37. The terms of this letter (received by the Planning Authority on 31st of March 1982) are of importance, and read as follows:-

"RE: Local Government (Planning and Development) Acts. 1963and 1976) Planning Reg. Nos. 1388/80 and 45/82

Dear Sir

We are in receipt of your letter of 10th March and we enclose three (3) copies of our drawing No. 125/37 and reply hereunder to your queries.

1(a) The access to sites (1) and (2) are served by our existing Asphalt Road. A, coloured yellow on Drg. 125/37. This road is equipped with water spraying facilities and in addition to this we have a mobile water spraying tanker on site. The access road from site No. 6 (planning ref No. 695/79) will have similar facilities when constructed and this will serve sites Nos. 3 and 4.

1(b) We have shown on drawing Drg. 125/37 the reinstatement, coloured green, of sites 1, 2, 3 and 4. The lands will be graded and the top soil replaced. They will then be seeded and planted as agricultural grassland and will be landscaped to conform with the appearance of the surrounding land.

2. We will have portable noise monitoring equipment located in the dispatch office as shown on drawing Drg. No. 125/37 so that we can comply with condition 2 of the outline planning permission.

3. The access to site Nos. 1, 2, 3 and 4 is shown on our drawing DRG. no. 125/37 and the access from site No. 6 will be in accordance with planning permission No. 695/79.

We trust that this information is to your satisfaction.

Yours faithfully

BRIAN COFFEY

DIRECTOR"

13 7. On 7th May. 1982 the Planning Authority issued a notification of a decision to grant an approval (subject to conditions) bearing reg. ref. 45/82. Conditions No. 6 and 7 are in like terms to the conditions 4 and 5 contained in the outline permission of An Bord Pleanala dated 27th October, 1981 (and are, in my opinion, conditions precedent).

14 The Planning Authority took the unusual but wisely...