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16 February 1998

MORRIS J:

This matter comes before the court as an application by Garden Village Construction Company Limited seeking leave to apply by way of Judicial Review for 18 relief's as set out in the Notice of Motion.

The proceedings relate to an application for planning permission being made by the second-named respondents, Gannon Homes Limited, to the Wicklow County Council (the County Council) for permission for a housing development consisting of 240 dwellings and the construction of a new sewage disposal plant to replace the existing one at Monneycarrol and Newtownmountkennedy, Co Wicklow. Garden Village Construction Company Limited is a construction company which is developing certain lands close to the lands in respect of which Gannon Homes Limited have made this planning application. It now seeks to challenge the manner in which the County Council has dealt with the application and responded to it.

I believe that the relevant facts can be summarised as follows.

On the 12 June, 1997 Gannon Homes Limited made the application to which these proceedings relate to the County Council by lodging papers seeking permission to carry out the works described at paragraph 8 of its planning application. This application is date stamped the 19 June, 1997. Upon receipt of the application the County Council in compliance with Article 29 of the Local Government (Planning and Development) Regulations 1994 date stamped the Regulations. On the 4 July, 1997 they wrote to Gannon Homes Limited in the following terms.

"With reference to your application for permission for 240 dwellings and replacement of existing sewage disposal works with the construction of a new diffused air packaged plant at Monalin, Newtownmountkennedy and Kilmacullagh received on the 19/6/1997 I am to inform you that the Planning Authority considers that the application does not comply with the requirements of the planning regulations. Accordingly in pursuance of Article 29 of the Local Government (Planning and Development) Regulations 1994 notice is hereby given requiring you to furnish the particulars requested on the following page, in order to complete the application".

Attached to this letter the County Council set out a list of six matters upon which the applicant was required to furnish particulars.

The applicants have not replied to this letter.

Mr McSweeney, BL counsel for the applicant has, during the course of his case, summarised his submissions and the basis upon which he claims his clients are entitled to seek Judicial Review may I believe be stated as follows:-

He identifies the "decision" which he seeks to judicially review as that arrived at by the County Council to

(a) date stamp the application and/or

(b) to embark upon a consideration of whether the application complies with the requirements of Articles 18 and 23, and, as may be appropriate, Articles 19, 20 and 22 of the Regulations.

(c) adopt the procedure provided for at Article 28(2)(b)(II) of the Regulations (this is the procedure requiring the applicant to furnish additional particulars).

It is Mr McSweeney's submission that the planning application lodged by Gannon Homes Limited is so fundamentally flawed and unsatisfactory that the only reasonable course for the County Council to adopt would have been to decline to date stamp it, which act he submits confers upon it a certain status, or, given that the County Council had no option but to date stamp it, having date stamped it, to adopt the procedure provided for at Article 29(2)(b)(I) which is the procedure whereby the applicant is informed that his application is invalid and cannot be considered by the Planning Authority.

In support of this submission he points to a number of matters which he says affect the planning application so fundamentally as to render this the only proper course for the County Council to adopt. These include the following matters.

(a) It is submitted that in paragraph 5 of the application Gannon Homes Limited claim to be the owner of the sewage disposal plant to which the application relates. Counsel submits that works of this nature vest in the Local Authority under the provisions of a Public Health (Ireland) Act of 1878, and this is a fact of which the County Council would at all stages have had full knowledge. Accordingly counsel submits that in no circumstances could the situation be clarified by any additional particulars which could be given by the applicant. This, he submits, renders the application fundamentally flawed and bad.

(b) Counsel submits that paragraph 8 is basically wrong in that no mention is made of Gannon Homes Limited intention to demolish the existing structure which now serves as the sewage treatment plant. Moreover he says that the town land in which the plant is situate is not mentioned.

(c) Counsel submits that paragraph 14 of the planning application is fundamentally flawed in that while it identifies the use of the land or structure as "derelict/grazing land" it makes no mention of the fact that the existing sewage treatment plant is in fact used for that purpose.

Counsel makes a number of other criticisms however the foregoing are in my view sufficient to identify the type of points which he makes.

Counsel submits that significant consequences flow from the decision of the County Council to adopt or to receive this defective planning application instead of returning it to the applicant as provided for in Regulation 29(3). These consequences would include, for instance, the right of the applicant to have a decision made on his application, the possibility of a permission by default, the possibility of a claim for compensation and the possibility of a right to appeal to An Bord Pleanala.

Therefore, it is submitted on behalf of the applicant, that this is a decision from which material consequences flow and it is one which is capable of being reviewed by way of Judicial Review and that leave to apply for Judicial Review in these circumstances should be granted.

On the receipt of a planning permission in my view the Planning Authority is left with no discretion but to date stamp the documents with the date of their receipt. This act does not alter the status of the documents which have been received, as was submitted by counsel, so as to bestow on them an additional status or, as counsel put it, bestows on it a "spurious validity".

In my view no additional status is bestowed on the document by having a date stamp affixed to it as the document may still be rejected and, in the circumstances outlined in Article 29(2)(b)(I) and Article 29(3) be returned to the applicant. The necessity to date stamp the documents with the date of their receipt by the County Council arises only by reason of the fact that planning consequences flow from various time scales commencing on the date of the receipt of the documents by the Planning Authority.

Having received the application for planning permission the Planning Authority is required to consider whether it complies with the various Articles of the 1994 Regulations. If they determine that it complies with the Articles they are required to send the applicant an acknowledgement stating the date of receipt of the application (see Article 29(2)(a)).

In the event that the Planning Authority considers that the planning application does not comply with the requirements of Articles 18 and 23 and, as may be appropriate, Articles 19, 20 and 22, they are empowered to require the applicant to furnish such particulars as may be necessary to comply with these requirements.

This is the determination or decision to require the applicant to furnish particulars, instead of rejecting the application, which the applicant challenges.

It is well settled that for a court to intervene or interfere with such a determination or decision the circumstances referred to in O'Keeffe v An Bord Pleanala [1993] 1 IR 39 must exist.

Chief Justice Finlay at page 70 of this decision expressly approves the decision of Henchy, J in State (Keegan) v Stardust Compensation Tribunal [1986] IR 642. I quote Chief Justice Finlay as follows;

"In dealing with the circumstances under which the court could intervene to quash the decision of an Administrative Officer or Tribunal on the grounds of unreasonableness or irrationality Henchy in that judgment set out a number of such circumstances in different terms.

they are;

(1) It is fundamentally at variance with reason and common sense

(2) It is indefensible for being in the teeth of plain reason and common sense

(3) Because the court is satisfied that the decision maker has breached his obligation whereby he must not flagrantly reject or disregard fundamental reason or common-sense in reaching his decision".

At page 71 of that judgment Finlay CJ says;

"The court cannot interfere with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have reached different inferences and conclusions or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it".

Having considered the contents of the planning application and the decision made by the County Council in this case I am satisfied that the applicant has not made out any case to establish the existence of any of the circumstances in which the court should intervene. The decision to seek further particulars was not at variance with reason or common-sense. It was not indefensible for being in the teeth of plain reason or common-sense and I am satisfied that the decision maker had not breached his obligation not to flagrantly reject or disregard fundamental reason or common-sense in reaching his decision.

Accordingly I see no grounds for granting the relief claimed and I refuse the applicant's application.