Case Summary –

Abbeydrive Development Limited Applicant v. Kildare County Council, Respondent [2009] I.E.S.C. 56,

[2003 No. 331JR]

HIGH COURT 22nd July, 2009

Supreme Court Judgment by Fennelly J.

Planning Law – Judicial review – Default planning permission – Whether or not material condemnation of the development plan – Whether full compliance with the Planning and Regulations, 2001 –

The Appellant applied for planning permission to build houses on a site in Ballymore Eustace, Co. Kildare in 2002. The Respondent made no decision within the period of 8 weeks permitted by Section 34 of the Planning and Development Act, 2000. The planning application the subject of the proceedings was acknowledged by the planning authority as having been duly received on the 3rd December 2002. The eight-week period permitted for the making of a decision expired on the 5th February 2003. The Respondent served a notice requiring further information on the 6th February 2003 i.e. one day outside the permitted period. The proposed development though almost entirely residential included a very small two-storey community facility comprising a crèche, neighbourhood shops, and a medical centre. These features represented approximately 0.2% of the total floor area of the proposed development. The relevant zoning in Kildare County Development Plan 1999 was R2 on part of the sight and R3 on another part of the site. Both types of zone areas are described as “Solely Residential”. R2 being zoning for low density residential development and R3 provided for the development of a rural community.

Solicitors for the Appellant wrote to the planning authority on the 6th and 10th of March 2003 contending that a planning permission should be regarded as having been given at the end of the eight-week period. Having failed to persuade the Respondent to that effect, the Applicant served a notice of motion seeking leave to apply for judicial review principally by way of a declaration a decision to grant planning permission on foot of the application should be regarded as having been given on the 5th February 2003 and, if necessary an order of mandamus.

Held by the High Court (Murphy, J.) 1, that the planning application fell into a category of development which was “open to consideration”. 2. That the permission would not normally be granted but the planning authority have power in the exercise of its discretion to grant it.

In response to the application the Respondent planning authority alleged numerous non-compliances with the planning regulations. It was asserted that in the planning application

(1)  the site boundary was delineated in pink and not in red.

(2)  The plans and drawings did not indicate the name and address of the person by whom they were prepared: only the name “SKK Horan and Associates) was provided

(3)  That North Point was not indicated on the floor plans.

(4)  As regards house types 7 to 11, the scale of drawings was indicated as being 1-100. However, site elevations would appear to have been drawn at a scale of 1 – 200 and there is no reference to or indication of this difference in scale on the drawing.

(5)  The site notice which was singed by a person acting on behalf of the applicant but the context addressed to the person was not inserted as required.

Fennelly, J. was satisfied that the learned High Court judge was right to come to the conclusion that the non-compliances were not sufficient to invalidate the application. While not condoning non-compliance with the regulations, there appeared to be no evidence that potential objectors had been negatively affected. Both Murphy, J. and Fennelly, J. agreed with the comments of Mr. Justice Henchy in Monaghan U.D.C. v. Alf-A-Bet Promotions Limited (1980) I.L.R.M. 64 at 68-9 where he stated:

“I …feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may effect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures to uses as a condition precedent to the issue of the permission. In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of mere direction except on the application of the de minimis Rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the Courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with”.

Fennelly, J. described the default mechanism as follows:

“Section 34(8) constitutes an exception to the normal procedure leading to the grant of planning permission. It is capable of leading to unsatisfactory results. Firstly, it may mean that the planning authority is unable to obtain appropriate information about the development. Secondly, it may deprive the planning authority of the opportunity to impose appropriate conditions on any permission. Thirdly, it potentially makes it difficult for persons entitled to appeal An Bord Pleanàla pursuant to Section 37 of the Act to know of the date of the deemed decision so as to be able to exercise their right within the permitted period. Nonetheless, it is a legislative provision to which, where its conditions have been satisfied, the Courts have a duty to give effect. The Oireachtas made a clear policy decision to retain this provision in the new and comprehensive legislation of 2000 following a number of judicial remarks on the implications of the former section of the Act of 1963. In addition to the statutory pre-condition, to which I have already referred, namely that that applicant should have complied strictly with all that applicable regulations, it is fundamental to the very notion of a default planning permission pursuant to Section 34(8) of the Act that any ensuing planning permission will not materially contravene the Development Plan. This follows from the wording of the section. A default permission will arise only when the planning authority ‘fails to make a decision’ within the permitted period. When the subsection then speaks of ‘a decision by the planning authority to grant the permission [being] regarded as have been given’, it is axiomatic that the latter decision necessarily is one for which the authority would have had the power to make. Any contrary proposition would imply that the planning authority, by its neglect, would enlarge its own decision making power.”

The case law makes it clear that when a planning authority is considering an application for permission it is restricted to the statutory considerations with regard been had to the provision of the development plan. Therefore no decision can be made which involves a contravention of the development plan without the implementation of the material contravention procedure. See P & F Sharpe Limited v. Dublin City and County Manager [1989] and State (Pine Value Development) Limited v. Dublin County Council [1994]. Murphy, J. in the High Court had taken this line of authority one step further. In his view the default planning permission could not be granted if the category into which the planning application fell was “open for consideration”. Murphy, J. seems to have followed the reasoning of Barr, J. in McGovern v. Lord Mayor, Alderman and Burgesses of the City of Dublin. In that case the development plan provided for a category of development, which it deemed to be “open for consideration”. Barr, J. held that this necessarily entails:

“A positive assessment by the planning authority of an application which is outside the normal confines of the development plan in contrast to the granting of permission for development which is prima facie within the norm”.

The evidence before the Court (despite there being no specific zoning matrix applicable) was that the relevant categories were as follows “normally permitted” ”not normally permitted but open for consideration”, “and not permitted”. Based on the evidence before him (that the development had sufficient merit to be considered) Fennelly, J. was of the view that the Respondent did have the discretion and therefore the power to decide to grant or refuse a permission. He stated:

“For reasons already given, it could not be a deemed decision where no valid decision could have been made. It is quite another matter to say that there cannot be a deemed decision where a valid decision could have been made, although such a decision would involve an exercise of discretion in favour of the applicant. I cannot see how the courts can impose any limitation on the effect of article 34(8) except on the basis of legal power. To do otherwise would have the inevitable effect of drawing the courts into expressions of opinion on matters which probably fall within the scope of the planning authorities. The present case is a good example. It is a matter of opinion, that is to say of proper planning judgment, whether the inclusion of a very small area for community services in a housing development should be considered as with or without the definition of residential zoning. That is a matter for the planning authority or, on appeal, An Bord Pleanàla to decide. In my view, Barr, J. was in error in McGovern, in establishing a new category of case, beyond cases of contravention of development plan or non-compliance with regulations where default permission cannot arise.”

Fennelly, J. endorsed the views of Clarke, J. in Maye v. Sligo Corporation where he stated:

“In my view it is not appropriate to extend the limitations on an entitlement to a default planning permission beyond the material non-contravention circumstances identified in P & F Sharpe. The position adopted in most of the cases stems from the vires of the planning officials concerned to make a decision without reference to the elected members of the planning authority. The starting point has to be the 2000 Act itself (which as I pointed out earlier in this judgment has been recently re-enacted by the Oireachtas) places no limitation on the entitlement to a default permission by reference to the type of planning application involved. It does require that the applicant has complied with the planning regulations. There is not even a hint, however, in the legislation that the Oireachtas took the view that there should be any limitations by reference to the type of application involved.”

Fennelly, J. then turned to deal with the question of the Court’s discretion in this matter. He disagreed that the non-compliance of the planning regulations was sufficient to justify an exercise of discretion against granting the relief sought. He secondly refused to accept that there had been an unacceptably long delay on the part of the Applicant.


Case Summary –

Quinlan Applicant v. An Bord Pleanàla, Respondent [2009] I.E.H.C. 228,

[2008 No. 1199JR]

HIGH COURT 13th May, 2009

Supreme Court Judgment by Dunne, J.

Planning Law – Judicial review – Interpretation of the development plan – validity of condition attached to planning permission – meaning of “embassy” use – role of courts in interpreting development plan.

The applicant is the owner of a premises at 43 Ailesbury Road, Dublin 4 (“the property”). The applicant applied for two separate planning permissions “the refurbishment permission” and the “extension permission”. It appears to have been accepted by the parties that the works comprised in the applications would have been exempt if the property was not a protected structure. Dublin City Council granted both applications on the 16th January 2008 subject to a number of conditions. The material condition stated:

Condition no. 3 stated:

“The use of the entire premises shall be solely for use as an Embassy as defined at Appendix A 13 of the 2005 – 2011 Dublin City Development Plan and shall not be used as general offices or any other uses unless authorised by a prior grant of planning permission.

Reason: to control development, to protect the amenities of this residential conservation area as zoned in the current development plan and to facilitate the zoning objectives of that plan.”

The applicant appealed this decision on the 12th of February, 2008. On the 3rd September 2008 the Board directed Dublin City Council to attach condition no. 3 to the grants of permission. The judicial review proceedings were issued seeking an order certiorarai against the decision of the Board on the 3rd December 2008 and were admitted into the commercial list of the High Court. It was directed at that stage that the application for leave to institute judicial review proceedings and the substantive hearing would be heard together.

Background

The property is a protected structure located within the zoning objection Z2 of the Dublin City Development Plan 2005 – 2011 which provides that it is “to protect and/or improve the amenities of residential preservation areas”. There seem to be have been no substantive factual disputes as between the parties in relation to the history of the premises. A Conservation architect report stated: