BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

6 February 1998

MORRIS J:

This matter comes before the court pursuant to order of the court dated the 20 January, 1997 (Barron, J), whereby the applicant was given liberty to apply for judicial review in respect of a purported decision by the respondents to grant planning permission to the notice party. The order also made the appropriate provisions for the service of the notice of motion on the notice parties.

By order of the 21 March 1997 (Kinlen, J) An Board Pleanala, a second notice party to these proceedings, was restrained from making a determination on an appeal which the applicant had made to it, against the said purported planning permission pending determination by this court of the issues now before it.

The facts of the case may be summarised as follows: On the 3 May, 1996 an application was made to Dublin Corporation on behalf of Legis Limited, who is the developer and a notice party, for permission to demolish eight garages and replace them with two houses. Objection to the said application was made by Ardoyne House Management Company Limited. These objections included concern expressed which they had that the site notice and newspaper advertisements were misleading. On the 24 July, 1996 Dublin Corporation served a notice under Article 17(2) of the Local Government (Planning and Development) Regulations of 1994 in which it is stated that the site notice and newspaper advertisements were inadequate due to the inaccuracy of the address contained therein and the notice party was directed to publish revised notices and was told that the "effective lodgment date of your application will be the date upon which this notice is complied with".

In the Grounding Affidavit of Mr Brendan O'Connor, Architect and Planning Consultant who advises the applicant it is stated, and not contradicted, that upon becoming aware of the issuing of this notice by the respondents it was decided to make no further representations to the respondents pending compliance by the notice party with the notice.

The third parties saw specific difficulties in re-advertising as required by this notice and Messrs Freyer and Tayler, Chartered Architects acting on behalf of the third parties wrote to the Chief Planning Officer on the 2 of September, 1996 setting out the difficulties involved, which were, inter alia. that the addresses, which was required to be inserted in the notice to be published and exhibited on the site notice, did not correctly describe the property in question and moreover that Legis Limited did not own any property at that address on which a site notice could be displayed. It would appear that there is at least some merit in these submissions. The third parties took no steps to comply with the notice by advertising or displaying a site notice as required in the notice of the 24 July, 1996.

The respondents entered the letter of the 2 September, 1996 from Freyer and Tayler on the planning file and on the 31 October, 1996 the respondents purported to grant permission for the proposed development. This is the decision which is now challenged.

There are two main issues which come to be determined by the court which can be identified as follows.

(1) What consequences flow from the service of the notice of the 24 of July, 1996 (hereinafter referred to as the Article 17(2) notice) in the circumstances of this case and what effect, if any, does the service of this notice have on the validity of the decision of the respondents dated the 31 October, 1996 to grant permission for the development.

(2) Does the service of an appeal by the applicant to An Bord Pleanala (expressed to be an appeal "without prejudice") deprive it of its rights to seek relief by way of certiorari in this court and confine him to seeking his relief before An Bord Pleanala.

The First Issue.

Part IV of the Local Government (Planning and Development) Regulations of 1994 entitled "Permission Regulations" set out, in detail, provisions in relation to notices to be given or displayed prior to the making of a planning application. It vests in the Planning Authority certain powers where it appears to it that any notice does not comply with these regulations. In particular Article 17(2), paraphrased, provides as follows "(2) where (a) it appears to a Planning Authority that any notice . . . (ii) does not comply with the requirements of Regulation 15 or paragraphs (b) and (c) of sub-article 1.

. . . [The Planning Authority] shall require the applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement".

Article 39 provides "a planning authority shall not decide to grant or to refuse a permission or an approval until after . . .

. . . (C) in any other case (I) where the applicant has been required pursuant to Regulation 17 to give further notice of the application, the expiration of 14 days beginning on the day on which that requirement has been complied with."

It is the applicant's submission that once a valid Article 17(2) notice has been served then an applicant for planning permission has no option but to comply with that notice. It is submitted that there is no provision for the withdrawal of an Article 17(2) notice and because of the provisions of Article 39 the Planning Authority has no power to decide to grant or refuse permission until two weeks after the requirements of the notice have been complied with. It is submitted that since the requirements of the notice have not been complied with in this case the respondents, had no power to grant permission as they purported to do on the 31 October, 1996 and it is bad.

I am left in no doubt that this submission is correct. Unlike some of the notices in the Planning Code there is no provision in the code for the withdrawal of an Article 17(2) notice. It remains effective until it is either quashed by the court or is complied with. Clearly significant consequences flow from the service of such a notice and great care should be taken prior to the service of such a notice.

The provisions of Article 39 are, in my view, clear beyond any possible doubt that the service of this notice removes from the Planning Authority the power to make a decision to grant or refuse the permission until 14 days after the requirements of the notice have been complied with. I am satisfied that there has been no effort made by the notice party to comply with the notice. Counsel on behalf of the notice party Mr Galligan BL has argued that since it would appear that the original advertisement and site notice accurately set out the location of the property in respect of which the application was made and since these notices were validly advertised and displayed on site that there was "effective compliance". In my view this submission cannot be correct since such advertising and display of the site notice while it may have complied with the requirements of the Regulation was not a compliance with the notice and it did not advertise the property as being situate in Pembroke Park as required. Moreover no copy of the revised newspaper notices was provided to the Planning Authority as required by the notice.

It has been submitted by Mr Bradley on behalf of the Corporation that the applicants have suffered no prejudice by any default there may have been on the part of the Planning Authorities since they already had the opportunity of making three submissions in relation to the permission and would have been unlikely to make any further submissions. He submits that the applicants are seeking to take advantage of no more than a technicality in the Planning Code.

In my view the question of prejudice is not material to the issues in this case. A consequence of the provisions of Article 17 and Article 39 is that the power of the Planning Authority to grant or refuse permission is put in abeyance by the service of the Article 17(2) notice until 14 days after compliance with the notice.

I am satisfied that the submissions made on behalf of the applicant by Mr O'Floinn are correct.

The Second Issue.

It has been submitted by both counsel for the respondent and counsel for the notice party that the applicants having served notice of appeal to An Bord Pleanala, albeit that this notice of appeal was served "without prejudice" are confined to seeking their relief's by way of appeal before An Bord Pleanala and, on the authorities, this court should, in the exercise of its discretion, refuse the applicant relief before this court.

I have had the relevant authorities opened to me by counsel and I am satisfied on the authority of Abenglen Properties Limited v The Right Honourable The Lord Mayor Alderman and Burgess of Dublin [1984] IR 381 that this court is vested with a discretion.

In my view in the exercise of this discretion I should have regard to the very clear statement of the law contained in the judgment of Finlay, CJ in P and F Sharpe Limited and Grove Developments Limited v Dublin County and City Manager and Dublin County Council [1989] IR 701 when he said at p 721;

"It was contended by the respondents that having regard to the decision of this court in state in (Abenglen Properties) v Dublin Corporation [1984] IR 381 the developers having lodged a notice of appeal to An Bord Pleanala against the purported decision of the County Manager to refuse permission should be confined to that remedy and as a matter of discretion should be refused any relief by way of judicial review. I am satisfied that this contention must fail. The powers of An Bord Pleanala on the making of an appeal to it would be entirely confined to the consideration of the matters before it on the basis of the proper planning and development of the area and it would have no jurisdiction to consider the question of the validity from a legal point of view of the purported decision by the County Manager. It would not therefore be just for the developers who are respondents in this appeal, to be deprived of their right to have the decision quashed for want of validity".

Even prior to this judgment the courts had recognised these principles. Thus in Tennyson v Corporation of Dun Laoghaire 1991 2 IR 527 Barr J stated as follows;

"the Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of Planning Authorities within the first category ie those relating to planning matters per se. Such appeals are heard and determined by An Bord Pleanala which is a tribunal having the benefit of special expertise in that area. The court is not the appropriate body to adjudicate on such matters and in my view it ought not interfere in disputes relating to purely planning matters. However, where the dispute raises an issue regarding a matter of law such as the interpretation or the wording of a development plan in the light of the relevant statutory provision and the primary objective of the document, then these are matters over which the court has exclusive jurisdiction. An Bord Pleanala has no authority to resolve disputes on matters of law".

In my view the issue that arises in this application, namely whether the power to grant or refuse permission is postponed until after the requirements of an Article 17(2) notice have been complied with, is a pure matter of law. Accordingly the appropriate tribunal in which the applicant should seek relief is in this court and the service of a Notice of Appeal to An Bord Pleanala in the circumstances of this case is no bar.

Accordingly I am of the view that the applicant is entitled to the relief which it seeks.