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!

1. This judicial review arises out of a dispute between the applicant developer and the respondent planning authority regarding an application made on or about 6th December, 1996 for full planning permission for a development which was stated to comprise "alterations and extension of approved plans for No. 49 Ranelagh Road [Dublin] and for extension to rear of 50 Ranelagh Road. The overall development to comprise a 21 bedroom guesthouse". There is controversy regarding service and subsequent re-service on the planning authority of a particular document (the document) which contains information the furnishing of which would cause time to run against the respondent in the matter of ruling upon the application and notifying the applicant of its decision. Section 26(4) of the Local Government (Planning and Development) Act, 1963 (the 1963 Act) provides for planning permission being obtained by default where:-

2. In terms of the instant case "the appropriate period" means two months from service of the document on the respondents' planning authority. The applicant contends that the document, or facsimile thereof, was lawfully served on the authority on two separate dates and that at latest the time for the respondents' ruling upon the application expired on 7th May, 1997. It is further submitted that in the premises the applicant has obtained permission for his proposed development by default pursuant to Section 26(4) of the 1963 Act; that the permission purported to have been granted by the planning authority dated 27th May, 1997 is a nullity and that the order made by An Bord Pleanala on 24th October, 1997 pursuant to an appeal brought by objectors to the latter alleged permission is also of no legal effect as it arose out of the respondents' alleged planning permission which itself was null and void and could not affect a pre-existing valid default permission.

3. The respondent authority has disputed that the document has been validly served. It contends that time had not run against it and that its planning permission dated 27th May, 1997 was granted within time and, subject to the appeal to An Bord Pleanala, had the full force of law.

4. I am satisfied that it is unnecessary to resolve the foregoing controversy as to whether time had run against the respondents and whether the applicant had already obtained permission by default for his proposed development prior to the purported permission subsequently granted by the respondents' planning authority subject to conditions specified in its notice dated 27th May, 1997. The issue of the planning authority being out of time in considering and ruling upon the application (if such were the case) is dependant upon a fundamental question which is at the heart of this application, i.e., having regard to the terms of the developer's application for planning permission on which his case is based and depends was he entitled to rely upon the statutory default provision?

5. The developer's application of 6th December, 1996 related to a guesthouse comprising 21 bedrooms in an area described as having zoning objective A1 in the statutory development plan of 1991 for the city of Dublin. (The correct designation of the area is A2 but nothing turns upon that misdescription). It is alleged by the applicant at paragraph 3 of his original affidavit sworn herein that the relevant zoning permits activities of the type envisaged in his application. Mr. Peter Nelson, the respondents' planning officer who dealt with the application, takes issue with the latter point at paragraph 19 in his replying affidavit. He contends that the relevant zoning does not "permit" the proposed development as alleged because it does not fall within the category of "normally permissible" developments under zoning objectives A1 or A2 as specified in the plan. Unlicensed guesthouses are included in the "open for consideration" category under both zoning objectives. The phrases "Normally Permissible" and "Open for Consideration" are defined in the development plan at p. 106 as follows:-

6. It is submitted that "open for consideration" uses are not permitted per se under the plan but require to be accepted by the planning authority in the light of the particular circumstances of each case as being consistent with the proper planning and development of the area, i.e., such uses are not permitted unless and until specifically authorised by the planning authority or by An Bord Pleanala. In short, it is submitted that unless so authorised no planning permission by default can be obtained in respect of a guesthouse development whatever the size of it might be. It was also submitted that in the instant case the applicant's reliance upon an alleged default permission fails on a further ground in that his proposed development does not come within the definition of "guesthouse" in the development plan which is in the following terms:-

7. In the light of the foregoing it is argued that the development envisaged by the applicant is not a guesthouse within the meaning of the development plan and, therefore, is not one which is "open for consideration" within the zoning objectives for A1 or A2 in the plan.

8. In response to the foregoing submissions it is argued on behalf of the applicant that the extent by which the application exceeds the maximum number of guesthouse rooms is such that in all the circumstances it does not constitute a "material contravention" of the plan. The failure of the planning authority to take any point about alleged material contravention when dealing with the application is relied upon as evidence that the authority does not regard the fact that the application is for 21 bedrooms in the proposed guesthouse as being a significant factor amounting to a material contravention of the plan. In that premise it is argued that the application in question was one for which default permission was obtainable.

9. As already stated, the net question for determination is this. Having regard to the terms of the developer's application for planning permission, was he entitled to rely upon the statutory default provision contained in Section 26(4) of the 1963 Act and (if the planning authority was in default thereunder) is he deemed to have obtained permission for the development specified in his application of 6th December, 1996?

10. The statutory time limit imposed on a planning authority to give notice to the applicant of its decision on a planning application has not only potential consequences for the authority and the applicant but also for any objectors to the proposed development if permission for it is deemed to have been granted by default - particularly where it is for a project which is outside the scope of developments specified as "normally permissible" in the relevant development plan. Where default permission is obtained objectors may be unable to challenge the intended development by way of appeal to An Bord Pleanala if permission is not publicised in time for an appeal. In consequence, objectors may suffer significant harm which might have been avoided or ameliorated if they had had the benefit of access to An Bord Pleanala as would be the case if permission had been granted by the planning authority within time. Accordingly, in the interest of justice the scope of the statutory right of a developer to permission by default should be strictly interpreted. In the light of that requirement I am satisfied that the following principles apply:-

11. The types of development "normally permissible" as to zoning objectives A1 and A2 in the city of Dublin plan do not include guesthouses whatever their proposed size may be. Some such user is included in the categories which are deemed to be "open for consideration" by the planning authority. It follows that a guesthouse is not a development which is prima facie permissible in the relevant area, but it may be allowed by the planning authority if satisfied that it would be consistent with the proper planning and development of the area. 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 a development which is prima facie within the norm. I am satisfied that a default permission must be confined to the latter. It would be unreal and potentially unjust to others to interpret the sub-section as including not only permission by default for a development which is "normally permissible" under the development plan, but also an implied approval by the local authority of the particular development, without right of appeal, which is not "normally permissible" and where sanction is dependant on the planning authority being satisfied that the proposed use is consistent with the proper planning and development of the area in the special circumstances of the case. The latter if granted by default entails a substantial and potentially far-reaching incursion into the rights and obligations of the authority under the planning code and of possible objectors to the project in question. The grant of permission by default for a development which is "normally permissible" on foot of the relevant plan entails no major encroachment on the rights and obligations of the planning authority.

12. In my opinion the developer's application for planning permission dated 6th December, 1996 by reason of its nature was not one for which default permission could have been obtained on foot of section 26(4) of the 1963 Act even if the respondents' planning authority had failed to deal with it in time as alleged by the applicant. The end result is that the planning permission granted by the respondents on 27th May, 1997 is valid per se and also the order on appeal therefrom made by An Bord Pleanala on 24th October, 1997. I note that the applicant contested the appeal albeit without prejudice to his contention that no lawful appeal lay as he perceived that he had already obtained permission by default prior to the formal granting of permission by the planning authority.