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1. This is an application for a declaration that a default planning permission shall be regarded as having been given to the Applicant on the 19th February, 2000 in respect of an application for development comprising: “completion and retention of an extension comprising two floors of offices with roof space storage above the rear of the premises,

2. No. 1 Newbridge, Athlumney, Navan in the County of Meath.”

3. On the 23rd December, 1998 Navan Urban District Council granted planning permission for development described as a change of use to office, extension to rear for use as offices with car parking at the lower ground floor area at No. 1 Newbridge, Athlumney, Navan, County Meath planning permission register and reference number TP51/98.” These premises are adjacent to the river Boyne and when the Applicant jointly purchased the same with Cyril Maguire on the 3rd February, 1998 the purchase included a 10 foot wide strip of ground along the western boundary of the premises along the bank of the river Boyne.

4. Construction work began in or about March, 1999 and consultant engineers advised that some minor alterations were necessary to avoid seasonal flooding from the river Boyne. As a result, it was necessary to raise the original floor levels proposed on the approved plans by approximately 2 to 3 feet. The Applicant was advised that these were minor alterations which had no significant effect on the external appearance of the premises and were within the terms of the planning permission TP51/98. However, the Respondent, Navan Urban District Council did not agree and on the 29th June, served a warning notice under Section 26 of the Local Government (Planning and Development) Act, 1976 acquiring works to be discontinued, on the basis that the development was unauthorised as being “not in compliance with planning permission TP51/98”. Construction work ceased and subsequently on the 18th August, the Applicant applied for planning permission to “complete and retain an extension comprising two floors of offices with roof space storage above to rear of premises at No. 1 Newbridge, Athlumney, Navan, County Meath.” This planning application was given register reference number TP54/99.

5. On the 18th August, 1999 the planning application was lodged. On the 29th September, 1999 the Respondent wrote to the Applicant stating that the planning application which was received on the 20th August, 1999 was incomplete and could not be considered pending the payment of the balance of the planning fee in the sum of £15.72. This fee was discharged on 4th October, 1999 and by letter dated the 1st December, 1999 a request was made for further information with respect to the planning application. Six items of further information were required of which two are of particular relevance, namely number 2 which reads as follows:-

6. The request continued

7. The second matter was that contained at number 3 in the said letter of request which reads as follows:-

8. The letter referred to in paragraph 3 thereof was addressed to the personal representative of Mary Smith deceased and read as follows:-

9. Notwithstanding this response Navan Urban District Council did not determine the application but instead on the 16th February, 2000 wrote again to the Applicant purporting to request “clarification of further information” by reiterating the requests to submit revised public notices in the form originally set out in the letter of the 1st December, 1999 and reiterating also the request set out in paragraph 3 of the said letter of the 1st December, 1999 other than the request to submit a letter of consent “from the owner of the land if outside your direct ownership upon which it is proposed to build.”

10. The Applicant’s case is

11. By Order dated 3rd April, 2000 the Applicant was given leave to bring the within proceedings seeking the reliefs of

12. The application is grounded upon an affidavit of the Applicant James Murphy. In his affidavit the Applicant said that he jointly purchased the premises at No. 1 Newbridge with Cyril Maguire of Moynalvey, Summerhill, County Meath. He says the purchase also included a 10 foot wide strip of ground along the western boundary of the premises being part of Folio 26176F of the Register of Freeholds of the County of Meath. He said the premises at No. 1 Newbridge comprised an unregistered property.

13. This planning application was given reference number TP51/98. On the 23rd December, 1998 the Respondent planning authority decided to grant permission to Cyril Maguire for the development of the Athlumney premises in accordance with the letter of application. Thereafter construction works commenced in about March, 1999 and in the course of the construction consultant engineers advised that some alterations were necessary to avoid seasonal flooding from the nearby river Boyne. As a result it was considered necessary to raise the original floor levels proposed in the approved plans which works would of necessity result in an increase to the overall height of the extension to the premises by approximately 2 or 3 feet. It appears that no fresh application was made in respect of the necessary alterations to the plans at this stage and on the 29th June, 1999 a warning notice under Section 26 of the Local Government (Planning and Development) Act, 1976 was served requiring the works to be discontinued on the basis that the development was unauthorised as being not in compliance with the planning permission TP51/98. In compliance with this notice construction works ceased and have not recommenced.

14. Thereafter on the 18th August, 1999 the Applicant sought permission to “complete and retain an extension comprising two floors of offices with roof space storage above to rear of premises at No. 1 Newbridge, Athlumney, Navan, Co. Meath”. This application was given the planning register reference number TP54/99.

15. The Applicant at paragraph 10 of his grounding affidavit points out that there has been considerable dispute between him and the Respondent in respect of the 10 foot strip of ground referred to. He points out that the Respondent Council has been carrying out construction works in pursuance of the Navan town sewage augmentation scheme on lands directly adjoining his property and he believes that the works have encroached upon the 10 foot strip of ground to which he claims to be lawfully entitled. He says that legal proceedings are contemplated by the Applicant in respect thereof and that the Respondent has sought details of the ownership of this disputed 10 foot strip of ground by way of a purported clarification of further information dated the 16th February, 2000 knowing that the ownership thereof is a matter of considerable dispute as between the parties. It is in these circumstances that he says that the requests concerning ownership have not emanated from proper planning and development considerations. He claims that he had invested considerable monies in the premises at No. 1 Newbridge and the premises remain in a partly developed state since June, 1999 with consequent economic loss as to the Applicant. He points out that the Respondent’s construction works immediately adjacent to and on his property is proceeding with haste notwithstanding an ongoing dispute between him and the Respondent as to the ownership of the 10 foot strip of ground along the western boundary of his premises.

16. A further affidavit has been sworn by Mr. Peter H. T. Murray, a Chartered Town Planner of Navan on behalf of the Applicant. In his affidavit he indicates that he was retained in an advisory capacity by the Applicant and Cyril Maguire in respect of the planning application bearing reference number TP51/98. He was subsequently retained in an advisory capacity by the Applicant with respect to the planning application TP54/99.

17. Mr. Murray says that he was surprised to read the contents of the letter of the 16th February, 2000 from the Respondent to the Applicant as it “reported all of the elements of a request for further information dated 1st December, 1999 and replied to by the Applicant on the 20th December, 1999.” He says that the letter of the 16th February, 2000 is puzzling as paragraph 1 of the letter ignores the granting of permission for a change of use to the Applicant by the Respondent pursuant to planning application register reference number TP51/98.

18. Mr. Murray says that the information sought at paragraph 2 of the Respondent’s letter of the 16th February, 2000 is likewise puzzling as the question of ownership had been clarified in the context of the previous application bearing register reference number TP51/98. He says that the Respondent is fully aware of an ongoing difficulty as between the Applicant and the Respondent as to the ownership of the 10 foot strip of ground comprised in Folio 26176F of the Register of Freeholders County of Meath and he believes that the Respondent had sufficient information and intelligence before it as to the circumstances of the ownership of the relevant strip of ground to satisfy itself in terms of any planning and development considerations.

19. A statement of grounds of opposition has been filed on behalf of the Respondent which takes issue with the contentions made by the Applicant in his grounding statement. On behalf of the Respondent an affidavit has been sworn by Michael Killeen who is the Chief Planning Officer of Navan Urban District Council. Mr. Killeen says that the ownership issue is relevant in this case because firstly the Applicant must have an interest in the premises the subject matter of a planning application for it to be valid and secondly this issue has been raised by way of objection by an adjoining land owner who has objected to the Applicant’s planning applications. He takes issue with the Applicant’s statement that he purchased the 10 foot strip of ground along the western boundary.

20. With regard to the 1998 application 51/98 Mr. Killeen points out that the information given with the planning application in relation to the ownership was that Mr. Maguire was the “owner (recently purchased)”. He points out that there is no reference to Mr. Maguire being a joint owner of the property with any other person. Arising out of objections raised at the time, Mr. Maguire was written to on the 2nd September, 1999 asking him for evidence of his ownership of the property. This letter was responded to by a letter of the 6th September, 1999 from the Applicant who is a solicitor. In this letter the Applicant stated that he purchased the property in trust on his own behalf and on behalf of Mr. Maguire. He identified Mr. Maguire’s interest in the property as arising from a contribution made by him to the deposit. It is pointed out that Mr. Maguire is a building contractor who is retained to carry out the works on the premises, the subject matter of the planning applications herein. It appears that the objector was a Michael McManmon who alleged that Mr. Maguire had no interest in the premises albeit at a time when the 1998 permission had already been granted by the Respondent. In the context of the further application 54/99 the application form indicated that the Applicant was “the owner (joint)”.

21. Mr. Killeen refers to the Applicant’s premises as occupying a prominent position on the western bank of the river Boyne in the centre of Navan. The inner relief road or Navan ring road runs along the southern bank of the Boyne and the position of the Applicant’s premises is highly visible to all traffic on that road as well as adjoining buildings. The appearance of the premises is accordingly of considerable significance and importance from the visual amenity planning point of view. He says that the lands adjoining the Applicant’s premises run down to the river bank on lands registered in the name of the Respondent Council. He has been informed by the Respondent’s solicitor that the Applicant’s predecessor in title was the late Molly Smyth who was at all material times represented by Paul Brady & Co. Solicitors, in Navan. Mr. Killeen says that he is aware that prior to the Applicant acquiring the property the late Mrs. Smyth had intimated a claim to the adjoining lands on the basis of adverse possession. He said that the adjoining lands included the 10 foot strip referred to. Mr. Killeen says that prior to the sale by public auction of the premises in March, 1998 that negotiations took place in relation to the ownership of this land and that an agreement was reached that the Respondent Council would transfer the 10 foot strip to Mrs. Smyth’s estate or her successors in title when called upon to do so. It was on this basis that the Respondent’s solicitors wrote a letter of the 3rd February, 1998 to Paul Brady & Co. Solicitors. However, subsequent to the writing of this letter, and to the signing of the contract by the Applicant, certain difficulties arose in relation to the proposed transfer and further negotiations ensued between the Respondent’s solicitors, Noonan & Co. and Paul Brady & Co. with a view to resolve those difficulties. He says that agreement was eventually reached between the parties in March, 1999. The effect of the agreement was that instead of agreeing to transfer the 10 foot strip the Respondent would pay the sum of £6,500 to Mrs. Smyth’s estate. The understanding was that whilst this was in lieu of the agreement to transfer the strip, it would be without prejudice to any pre-existing claims that existed in favour of Mrs. Smyth’s estate to the entirety of the lands including the 10 foot strip. Mr. Killeen has exhibited letters passing between the respective solicitors at that time and points out that the sale between the representatives of the estate of Mrs. Smyth and the Applicant was not completed until subsequent to the date of these letters of agreement. While negotiations were ongoing between them it was the issue of the 10 foot strip which was delaying the closing of the sale to the Applicant and negotiations were also ongoing between the Applicant and the Respondent. He says that the reason for these negotiations was that a portion of the extended premises which the Applicant was proposing to construct was going to occupy a very small part of the 10 foot strip in the disputed area and the Applicant was seeking the Respondent’s consent to allowing him to build on this area and consenting to his planning application in that regard. He says that the consent was ultimately forthcoming.

22. He finds it surprising, in light of all of the foregoing, that the Applicant now claims to be entitled to the benefit of a letter of the 3rd February, 1998 from Noonan & Co. to Paul Brady & Co., then representing the late Mrs. Smyth. He says that these matters also put in context the legitimate planning concerns of the Respondent in relation to the ownership of the property, the subject matter of the planning applications.

23. Mr. Killeen takes issue with the description of the alterations proposed by the Applicant to the building as been ‘minor’. He says that the alterations involved raising the height of the building by some 3 feet which in view of the visual prominence and sensitive area it occupies is extremely significant and adding two lean-to single storey structures to the eastern and southern boundaries respectively. He says it is noteworthy also that when advised by his consulting engineers that it was not going to be possible to construct the building in accordance with the 1998 planning permission, he elected to proceed with what was plainly an unauthorised development until the warning notice was served on him by the Respondent.

24. Mr. Killeen says that the premises in question originally comprised a two storey over basement terrace dwelling and the 1998 application was for change of use of the dwelling to office use together with an extension to the rear of the premises for use as offices. This was a three storey extension and the 1998 application sought permission for car parking use on the basement with provision of three spaces together with office use on the first and second floors. The 1999 application, in addition to seeking retention of a significantly altered building also sought a further change in use, by changing the ground floor from car parking to office use, the first floor to remain office use and the second floor to change from office to storage use. He says that in his view these changes and most particularly the deletion of the car parking and the changes to office use on the ground floor constituted a material and significant change of use. He adds that the deletion of the car parking spaces meant that those persons employed in the office building to be constructed would have to park their cars elsewhere, most probably in a public car park.

25. With regard to the public notice for the 1999 application as published in the newspaper, he says it will be seen that this notice makes no reference whatsoever to a change of use of the premises even taking account of the existing permission in the manner explained above. He says the purpose of such notice is self evidently to inform the public of the nature and extent of the proposed development and consider whether or not to make an objection. In his view the notice published by the Applicant in relation to the 1999 application was significantly wanting in this regard and in his opinion defective and not in accordance with the requirements of the legislation because it made no reference whatsoever to any change of use being sought when the position was in fact otherwise. He expresses the opinion that a member of the public reading this notice would not be sufficiently informed as to the nature of the proposed development. On this basis he does not accept the contention that the 1999 application was validly made. It was for this reason that paragraph 2 of the letter of the 1st December, 1999 from the Respondent to the Applicant was included.

26. Mr. Killeen says that the Applicant’s response to query number 3 in his letter of the 20th December, 1999 was not only inadequate but also incorrect in view of the matters referred to by him. He says that the planning authority is obliged to read each application for planning permission separately and that it is not open to an Applicant to pick and choose portions of a previous permission and endeavour to add to them by a subsequent permission, that each planning file must contain full information so that a member of the public examining same has full and complete information on the application and that the state of knowledge in that regard of the planning authority is irrelevant. Accordingly he says that it was not only incorrect for the Applicant to state at paragraph 3 of his reply that ownership was clarified in the context of the 1998 application but also irrelevant and that the Respondent was perfectly entitled to seek this information de novo in relation to the 1999 application.

27. Mr. Killeen says that it was also considered relevant and appropriate to raise the ownership issue especially in view of the objection of Mr. McManmon so that full and complete information could be placed on the file. The fact that the Respondent previously consented to the Applicant’s application insofar as it related to land of which it was a registered owner was of no relevance unless the documentary evidence was made available for the planning file by the Applicant. On this basis Mr. Killeen disagrees with the contention of the Applicant that the letter of the 16th February, 2000 did not properly constitute a clarification of further information. In relation to ownership matters he says that the Applicant had clearly not responded properly to the previous request made by the Respondent and by reiterating paragraph 1 of the letter of the 16th February, 2000 the Respondent was indicating that it did not consider the Applicant’s response appropriate and would require republication of notices as outlined therein.

28. Finally Mr. Killeen strongly refutes the assertion that the requests concerning ownership have not emanated from proper planning and development considerations. He further refutes the suggestion that any works being carried out by the Respondent should have any bearing on their dealings with the Applicant in relation to planning matters.

29. A supplemental affidavit has been sworn by Mr. Peter H.T. Murray in which he responds to the affidavit of Mr. Michael Killeen. He says that under planning reference 54/99 the application did not involve raising the height of the whole building but only part of the building, that the planning application does not include any lean to single storey structures and the application maintains both the original building footprint and original roof line as that permitted pursuant to the previous grant of planning permission bearing register reference TP51/98. Mr. Murray expresses the opinion that the shape, form and general appearance of the structure now sought to be completed and retained is not a material departure from the structure for which permission was granted under planning reference TP51/98. He says that the visual impact of the building did not represent a material alteration in planning terms and in fact the proposed alterations are consistent with nearby buildings which include a substantial four storey apartment complex directly opposite the Applicant’s building. He says that the completed roof structure proposed would be level with all adjoining buildings and the completed structure would screen off the adjacent buildings which are less than attractive, from a view of the public road.

30. Mr. Murray says that the relevance of car parking spaces to this overall development is over stated by the Respondent and constitutes neither a material or significant change of use as alleged. The Applicant had originally proposed the provision of car parking spaces on the 10 foot strip adjoining the application site. In the initial discussions between the parties in relation to planning application reference TP51/98, the Respondent expressed its own preference for the provision of car parking to be provided on other lands owned by the Respondent in the vicinity of but not adjacent to the Applicant’s premises. For this reason levies were imposed by the Respondent in the grant of planning permission reference TP51/98. He claims that this is indicative of the fact that the Respondent itself did not consider the provision of on site car parking facilities to be material or significant in considering the application as alleged. He says that the earlier planning permission TP51/98 approved the use of the entire premises both existing building and extension, for office use. He adds that the car parking portion of the premises is clearly ancillary to the office use of the planning unit as a whole.

31. With regard to the newspaper notice he says that the permission “to complete and retain an extension comprising two floors of offices with roof space storage above” is sufficient to alert any person that office use was proposed and changes were being proposed to the approved development. The earlier planning permission 51/98 was for “change of use of premises to office, extension to rear for use as offices with car parking at lower ground area.” He says that the public notice issued in respect of the 1999 planning application adequately conveyed to the public the nature of the development being both clear and unequivocal in its language, meaning and purport. He says that having treated the application as valid pursuant to Article 29 of the 1994 Planning Regulations the Respondent cannot now suggest that it was invalid. He says that Mr. Killeen’s point about the change of use of portion of the extension from car parking to office is not reflected in the revised notice called for by the Respondents which clearly required the Applicant to give notice of application for “change of use of existing dwelling to office use...and complete extension to the rear of dwelling for use as an office at lower ground floor and ground floor with roof storage space overhead.” The effect of this was to require the Applicant to publish notice that he was reapplying for permission for a change of use that was already approved. This was unnecessary and would have put the Applicant on risk of being refused or having a grant appealed to An Bord Pleánala.

32. Mr. Murray says that the planning application reference 54/99 was clearly an application to retain and complete an extension, the user of which was already approved under TP51/98 permission, that any member of the public on examining the planning file pertinent to TP54/99 would find full and complete information on the said application and would be referred to TP51/98. It is his experience that it is not the practice of planning authorities to require that every file repeat the entire contents of each related file and in any event the letter of the 16th February, 2000 could only lawfully seek to clarify information furnished in reply to the request for further information of the 1st December, 1999. He says it could not conceivably be irrelevant as suggested by Mr. Killeen, that the Respondent already had that information and had previously granted permission for a building with the same footprint on the said land.

33. Finally, Mr. Murray says that at no time in respect of the 1998 application did the Respondent contest the Applicant’s claim to ownership of the relevant 10 foot strip. He says it was clear at all times up to the grant of planning permission TP51/98 issued in December, 1998 that the Respondent knew and acknowledged that the Applicant herein had legal rights over the 10 foot strip and that subsequently the only issue to be resolved in the 1999 application was whether the deviation from the 1998 permission could be retained and completed.

34. A further affidavit has been sworn by the Applicant. He says that the contract for sale dated the 3rd February, 1998 concerning the purchase by the Applicant of No. 1 Newbridge and the adjacent 10 foot strip contained a special condition number 11 which confirmed that the 10 foot strip of ground was included in the title passing under the contract for sale. He says that the date of the sale of the premises by public auction was the 3rd February, 1998 and not March, 1998 as alleged and this date is the same date as the letter from the Respondent’s solicitors to Paul Brady & Co. confirming the Respondent’s agreement to transfer the 10 foot strip to Mrs. Smyth’s estate or her successors in title.

35. He says with regard to the nature of the title difficulties relating to this strip of land that they relate to the fact that the Respondent, having contracted the transfer of the 10 foot strip in settlement of its dispute with the estate of Mrs. Smyth or to her successors in title, realised subsequent thereto that the 10 foot strip formed an integral part of its plans and designs for the proposed public park immediately adjacent to the Applicant’s building at No. 1 Newbridge and that recovery of title to the 10 foot strip was essential to the successful completion of such plans. He says that at no time was he a party to or privy to any negotiations between the Respondents solicitors and Paul Brady & Co. as referred to. He was never aware of or privy to any agreement allegedly reached between the Respondent and Mrs. Smyth’s estate in purported satisfaction of the interest of Mrs. Smyth’s estate or its successors in title to the ownership of the 10 foot strip as alleged. He says that a letter of the 3rd March, 1999 from Paul Brady & Co. to the Respondent’s solicitors confirms the sum of £6,500 was paid by the Respondent to Paul Brady & Co. as agreed compensation for the delayed completion of the sale of the premises at No. 1 Newbridge, which delay, he says was occasioned by the Respondent’s refusal to complete the necessary transfer of the 10 foot strip to the Applicant and not in satisfaction of any claim which the estate of Mrs. Smyth may have had to the 10 foot strip. He says that the completion of the sale took place on the 1st March, 1999 and not subsequent to the correspondence dated the 3rd March, 1999 and the 4th March, 1999 respectively as alleged.

36. The Applicant says that he was contacted by the Respondent’s solicitor, at the behest of the Respondent, in January, 2000 and was specifically requested by the solicitors to submit to the Respondent planning authority a letter seeking the consent of the Respondent to the making of planning application reference TP54/99 in respect of that part of the application site which remains registered to the Respondent. He says that he expressed his concern regarding such a request which he believed could prejudice his entitlement to the 10 foot strip of ground. He says that he complied with this request on a ‘without prejudice’ basis to his contractual rights concerning the 10 foot strip and the Respondent was at all times aware it had contracted to transfer the 10 foot strip of ground to the estate of Mrs. Smyth or to the nominee and that the estate of Mrs. Smyth had contracted with the Applicant in similar fashion. He says that this is referred to in a report of Bernard Greene, Executive Planner dated the 16th February, 2000 exhibited in the affidavit of Michael Killeen wherein it is stated inter alia “the land in question, a 10 foot strip, is in the process of being transferred to the Applicant” and further “the planning authority are now satisfied with regard to your legal interest in the entire application site”. The Applicant says that the Respondent has during the life of this planning application carried out permanent development works on this 10 foot strip of ground. The entitlement of the Applicant to this strip of ground is a source of serious concern to the Respondent, which concern he believes, the Respondent has allowed adversely influence its assessment of the Applicant’s planning application. He says that the Respondent does not have legitimate planning concerns regarding ownership of the 10 foot strip or the application site.

37. A further affidavit was sworn by Michael Killeen in response to the supplemental affidavits of the Applicant and Peter H. T. Murray. Mr. Killeen says that it is incorrect for the Applicant to state that he was not party or privy to any negotiations between the Respondent’s solicitors and Messrs. Paul Brady & Co. The Applicant attended a meeting at the offices of the Respondent’s solicitors on the 20th October, 1998 together with Mr. Killeen, Fergus Muldoon the Town Clerk, Paul Cantwell and Thomas Noonan a solicitor. The purpose of the meeting was to see if an agreement could be reached in relation to the retention of the 10 foot strip by the Respondent. This meeting was followed by correspondence from Mr. Cyril Maguire who was alleged to be the owner of the property at the time setting out the terms and conditions under which he would be prepared to relinquish his claim to the 10 foot strip and he assumes that the Applicant, either in his own capacity as a joint owner of the property or alternatively as Mr. Maguire’s solicitor, was fairly conversant with the ongoing negotiations.

38. Mr. Killeen says that in relation to the 1998 planning application by Mr. Maguire, maps were prepared by Mr. Murray for the purpose of that application which were dated the 22nd September, 1998. Those maps reflect the fact that the Respondent had agreed with Mr. Maguire that in consideration of Mr. Maguire transferring to the Respondent a small portion of his lands that the Respondent would transfer to Mr. Maguire a portion of the disputed 10 foot strip so as to make the shape of the proposed new building more regular. The first map was lodged on the 9th October, 1998 and that the second map lodged on the 19th October, 1998. The second map had attached to it a covering note from J. Beggy. He says that the exchange of land indicated on these maps is inconsistent with the suggestion now being made by the Applicant that he and/or Mr. Maguire was at all material times the owner of the 10 foot strip in question.

39. Mr. Killeen accepts what is alleged in the Applicant’s supplemental affidavit in relation to what was in fact stated by Mr. Bernard Greene but he believes that Mr. Greene misunderstood the position, not having been involved in all the negotiations and his statement consequently was unintentional erroneous. He accepts that the Respondent had carried out development on the 10 foot strip but he denies that this had any influence on the Respondent’s assessment of the Applicant’s planning application.

40. With regard to Mr. Murray’s affidavit, he says that he did not intend in his previous affidavit to suggest that the height of the entire building including the existing original building and extension had been raised. In referring to “the building” at paragraph 16 of his principal affidavit he was referring only to the new extension, the subject matter of the planning application. He says that it is incorrect for Mr. Murray to say that the 1999 planning application maintains the original roof line permitted under the 1998 planning permission. Mr. Killeen has exhibited photographs with his affidavit and says that the plans lodged with the 1998 planning application show the top row of windows as being level with the top row of windows in the existing building and the row of windows below that in the extension as being level with the windows at the same level in the old building. He says that a cursory look at the photographs exhibited by him show that what is actually being constructed on the site is very significantly different in that the windows are no longer in line with the old building and not only give a disjointed appearance but now significantly increase the height of the building. He says that the sill level of the top row of windows is now almost level with the roof eves level of the existing building. He says that in no sense could these alterations be characterised as minor as they totally alter the visual impact of the extension from that for which permission was originally granted.

41. Mr. Killeen accepts that the 1999 planning application does not include any reference to lean - to or single storeys structures but that is what has in fact been constructed by the Applicant and he says that these can be seen from the photographs exhibited by him. He further reiterates his opinion that the elimination of car parking spaces in the building as constructed and the substitution of office use does amount to a material change of use.

42. Mr. Killeen does not accept that the republication of the notices would have increased the risk of an appeal by a third party. He says that even if the appeal was successful and permission was refused by An Bord Pleánala, the Applicant would still be entitled to rely on the 1998 planning permission which provided for a change of user; that it is not correct to say that any member of the public inspecting application 54/99 would be referred back to 51/98. He says that that contention might be correct in circumstances where the public notice referred to both applications but the notice in fact published by the Applicant makes no reference of any kind to the 1998 permission. He says that had the Applicant done so, he might well have received his permission long since. While he accepts that it is not the practice of both authorities to repeat the contents of entire related files, it is common practice to request Applicants to refer them to related files and for referral to previous applications’ planning reference numbers in public notices. Finally, Mr. Killeen says that the plans accompanying the 1998 application showed the exchange of lands between the Applicant for planning permission Cyril Maguire and the Respondent. As Mr. Murray was the person who prepared those plans, he finds it surprising to say the least that he now suggests that at no time, in respect of the 1998 application, did the Respondent contest the Applicant’s claim to ownership of the relevant 10 foot strip.

43. In the first place the Respondent contends that the issue of the ownership of the land was a real issue pertaining between the parties. It was submitted that the issue of ownership of the lands was a matter of some concern to the Respondent as the owner of neighbouring premises, who clearly had legitimate concerns in relation to the nature of the development to be carried out in respect of the premises, had been corresponding with the Applicant and disputing the fact that the Applicant had any interest in the premises or that the premises were held other than as to the entire beneficial and legal ownership by the Applicant. With regard to the form of notice, it is submitted that each planning application must stand alone and cannot be dealt with by reference to an earlier application especially in relation to the Applicant in respect of the application to which the planning notice refers. It is submitted that it is necessary for each planning file to contain all relevant information so that a member of the public who calls to examine the appropriate planning file will obtain a full picture of the proposed development from a perusal of that file and will not be required to examine other earlier or different files. The purpose of the planning notice is to alert the public as to the nature of the intended application and the development which it is proposed will be carried out. Save where an application is made in the context of a variation of an existing planning permission, which was not the course chosen by the Applicant in the present case, no application can be linked to a different application. The planning notice as used by the Applicant did not give an accurate or complete picture of the nature of the development that was intended by the Applicant.

44. With regard to the 1998 application, it is submitted that this was an application which related to a change of user of the existing premises from a dwelling house to office premises in tandem with the construction of the extension as provided for in the 1998 application. It is submitted that the permission which issued on foot of the 1998 application was not at any time proceeded with in that the development, which was commenced either by the Applicant or by Mr. Maguire, was an unauthorised development. It is further submitted that it is not open to an applicant for planning permission to make two separate planning applications in respect of the one premises and to perform part of the development provided for in one application and a portion of the development as provided for in the second application with the result that in effect the development of the lands will not be in accordance with either of the planning permissions. If the Applicant wishes to alter the development for which planning permission has already been obtained then he has the option of either applying to alter or amend the existing permission or alternatively applying again for planning permission de novo . It is the latter course which the Applicant in effect chose to follow and accordingly he is not entitled to rely in part on the terms of the permission granted on foot of the 1998 application in the context of his current proposal in respect of the development of the premises. In conclusion it is submitted that the Respondent is of the view that the legitimate concerns expressed by it as sought to be clarified by virtue of the notice for further information of the 16th February 2000, were legitimate, had not been adequately dealt with by the Applicant, could readily have been dealt with by the Applicant, and that having regard to the fact that the Applicant failed to deal with or otherwise address the same that no grant of planning permission is deemed to have issued pursuant to the provisions of Section 26 (4) (a) of the Local Government Planning and Development Act 1963.

45. On behalf of the Applicant it is submitted that the request for information was not legitimately required, that a request for information must be genuinely required and this applies all the more so in regard for a request for clarification. With regard to the advertising or notices in respect of the planning application, counsel has referred this Court to the provisions of Article 17 of the 1994 Planning Regulations which permit a planning authority to require an applicant to give 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, if it appears to the planning authority that the notice published or affixed to the property does not comply with the regulations covering same in either case because of its content or for any other reason it is misleading or inadequate for the information of the public. It is further submitted that the so called request for further clarification was not in fact a request for further clarification and that it was not a bona fide request for clarification of further information supplied.

46. Counsel for the Applicant referred a number of authorities. In the first case he referred to the unreported judgment of Butler J. in the case of the State (Conlon Construction Limited) -v- Cork County Council (Unreported High Court 31st July, 1975). In that case Butler J., while refusing the relief of Mandamus sought in the context of Section 26 of the Act of 1963 for a default permission, dealt with the nature of a request made for information. In construing a particular letter in that case he pointed out that the letter in question did not indicate that the County Council lacked any information, explanation or evidence necessary for it to decide upon the merits of the application on the planning grounds and held that the one request for information it contained related to the conditions under which the Applicants had purchased the site. In that case he said that while the Applicant’s lack of interest in the site may be relevant, once it is acknowledged that he has that interest, the nature of or conditions under which the interest rose are not considerations relating to the proper planning and development of the area and to these alone are the authorities confined.

47. Counsel further referred to the decision of the State (NCE Limited) -v- Dublin County Council [1979] ILRM 249 where McMahon J. held to similar effect.

48. Based upon these authorities, counsel submits that the request made of the Applicant was not necessary in the instant case because in the first instance he had been granted permission for building on the same footprint and secondly the Council had invited the Applicant to reapply for permission which had already been granted. It is submitted that this amounts to refusal on the part of the Urban District Council to determine the application when it had sufficient information. There was no justification for the letter of 16th February. Counsel further submits that the action of the Council ran counter to the spirit of Section 26 of the Act of 1963 which entails that a speedy decision be reached and it is submitted that this decision cannot be postponed indefinitely by the Council.

49. Mr. James Dwyer SC., on behalf of the Respondent having referred to the history of the matter submitted that the Applicant could have applied for retention of the unauthorised development or applied for fresh planning permission but could not have the benefit of both at the same time. The further application amounted to a seeking of retention without any reference to the earlier application. He referred to the fact that the notice in respect of the second planning application does not refer to the earlier application. Counsel referred to the change of user of the ground floor from car park to offices. It is submitted that there is no indication in the fresh planning application that what was not being built was the car park. Furthermore the lean-to's which were constructed were not provided for in the application. Having obtained the warning notice the Applicant should have applied to amend the existing planning application. However, this application does not give any indication of a change of user from the car park to the office space.

50. Counsel identified the issues in the matter being (a) the ownership of the land and (b) the 10 ft strip. It was further submitted that there is no evidence to support the contention that the Council was acting with an improper motive in its request for information. It was submitted that counsel for the Applicant was wrong to say that acknowledgement of the receipt of the planning application deems the notices etc., to be in proper form. It is submitted that only when the receipt of the application is acknowledged do officials visit the site etc. If the Applicant is right then the Respondent had no entitlement to seek further information. With regard to the contention that the notice in the form of the letters sent could not constitute an Article 17 (2) notice, it is submitted that there is no form for such a notice under the terms of the regulations. The Respondent made known its requirement for further information. It is clear that the letter of the 1st December, 1999 was not merely a letter requesting further information but that it was the letter suggesting that the Applicant provide fresh notice. It is submitted that once the notice issued and once the Applicant failed to deal with it, it stays the planning authority’s hand and may not be withdrawn. It is submitted that the Applicant should have done something about the notice when he had received it but he made no attempt to even discuss the matter with the Council. Furthermore, he made no attempt to comply with the notice’s requirement. It is submitted that it is clear that it was a notice to the effect that the said notice was inadequate and that the form of the notice in the requirement was not unreasonable in the circumstances. However, the Applicant felt that it was a requirement that was in furtherance of an ulterior motive. It is submitted that in the instant case the site notice doesn’t accurately describe what the Applicant proposed to do. It is submitted further that the Local Authority gave the Applicant reasonable time to respond to its requirements. However, the Applicant took the view that the requirement was not valid and therefore he was not going to deal with it.

51. Counsel for the Respondent submits that the remedy which the Applicant seeks is a discretionary remedy and that an Applicant must come to the court with clean hands. It is submitted that if the Applicant had complied with the original planning permission one would not have the situation that now pertains. With regard to the alleged ‘minor breach’ of the planning application, it is submitted that in fact what the Applicant did was something that amounted to a flagrant breach of the planning permission granted. It is submitted that this is a sufficient basis on which the Applicant should be debarred from the judicial review remedy which he seeks. The Applicant could have applied for retention or alternatively could have complied with the request in the letter of the 1st December, 1999.

52. While the Applicant links the planning application 51/98 and 54/99, Mr. Murphy wrote a letter on the 6th December requesting the Respondent to deal with the 1999 application on its own merits. On this basis it is submitted that the Applicant cannot now

53. With regard to the request for information in relation to the ownership of the land, it is submitted that this arose in light of the change in the ownership position as stated in the 1998 application as opposed to the 1999 application. In regard to the letter of the 1st December, 1999 the Applicant could simply have replied referring to the 1998 file. Counsel refers to the decision of Blayney J. in the case of Molloy and Another -v- Dublin County Council [ 1991] I.R. 90 where the court dealt with the discretionary aspect of the remedy of a default permission being granted under Section 26.

54. Counsel further referred this court to the decision of the High Court in Ardoyne House Management Company Limited -v- Dublin Corporation [1998] 2 IR 147 where Morris P. quashed the planning permission granted where the Corporation, having made a valid requirement under Article 17 (2) that the Applicant for permission republish notice of the application, granted the permission without the Applicant having complied with the notice. It was held by the High Court that once a valid Article 17 (2) notice had been served then an Applicant has no option but to comply with that notice. On this basis it is submitted that the planning authority is precluded by Article 39 (c) of the Regulations from deciding the planning application until 14 days after the notice has been complied with.

55. Mr. Gogarty of counsel on behalf of the Applicant in reply to Mr. Dwyer submitted that the letter of the 1st December, 1999 cannot be treated as anything other than a notice for further information, that it is not fair to assume that the Applicant treat this as anything other than that which it purported to be. There were no set words in the requirement and the letter did not in fact require re-publication of the notice. It is submitted that there was no direction to issue a fresh notice under Article 17 as otherwise it should have been couched in clear terminology. With regard to the submission that the Applicant could have suggested alternative wording to that contained in the letter of 1st December, 1999 it is submitted that the Respondent could itself, in light of the known difficulties, have suggested an alternative wording. With regard to the position of Mr. McManmon, he was aware of all matters in regard to application 54/99 being borne out by the terms of the planning application 51/98.

56. In conclusion the Applicant, to summarise the case, states that this is a clear case in which the planning authority have not made a decision within the appropriate period. It is submitted that there appears to have been a number of “non planning reasons” why the planning authority was reluctant to process this application 54/99 in the normal way, not least of which being that they themselves were carrying out works to create a riverside park on part of the lands to which the application related. The fact that an objector Mr. McManamon was calling for the “immediate recision” of planning permission 51/98 probably did not help matters from the planning authority’s point of view.

57. It is submitted that the result however from the point of view of the Applicant is that his application was not dealt with fairly or promptly and he is entitled to a declaration that the decision to grant the permission shall be regarded as having been given on the 19th February, 2000. It is submitted that the Applicant himself wrote to the planning authority requesting it to acknowledge that a default decision had arisen while there was still time for any objector to appeal, with the specific purpose of safeguarding third party rights.

58. The issue between the parties turns upon the consideration as to whether the Respondent was entitled to made the requests of the Applicant which it set forth in its letter of the 1st December, 1999. The first matter at issue between the parties in regard to this request was the requirement to “submit revised public notices” and the second part of the notice was that relating to the furnishing of details in relation to the Applicant’s estate or interest in or right over the land the subject matter of the planning application.

59. With regard to the first of these matters namely the notice as published it is to be noticed in the first place that the nature of the first planning application was very different from the second planning permission sought and this is clearly demonstrated by the photographs that have been adduced in evidence by the Respondent. I believe that the notice as published by the Applicant did not clearly indicate to the public the precise nature of the application and in particular the detail of the change effected from the earlier planning permission TP51/98. The essential change in this regard related to the ground floor area where a change of use was effectively being sought. Insofar as the purpose of the notices under Articles 15 and 16 of the Regulations of 1994 it is to enable members of the public to be made aware of the nature of planning applications, I believe it was reasonable for the Respondent to request the Applicant to submit revised public notices. It is to be noted, however, in regard to this matter that nowhere in the letter of the 1st December was there any mention made of Regulation 17 and furthermore it was not indicated to whom the revised notices were to be submitted, namely whether they were to be published in a manner contemplated by Articles 15 and 16 or whether they were to be submitted to the local authority for approval. However, it has been pointed out by Mr. Macken SC., on behalf of the Applicant that under the terms of Article 29 of the 1994 Planning Regulations that a local authority is required to consider at the outset, upon the receipt of the application, whether there has been compliance with the requirements of the Articles of the Regulations which matters include the notification given in respect of the planning permission. In this particular case the complaint is made that the matters raised were raised some considerable time after the receipt of the planning application and not on receipt of the planning application as contemplated by Article 29.

60. With regard to the request for information in relation to the Applicant’s interest in the land over which he sought to obtain the planning permission, I am of the opinion that this was a matter that was required by the planning authority within the terms of Regulation 33 of the said regulations. It appears from the evidence that after the earlier application had been made and a grant of permission had been given that a complaint was received by the local authority raising the issue of the ownership of the lands in question. It is furthermore noted that on the Applicant’s own case there is and has been a dispute in relation to the ten foot strip of land which is the heart of this matter. Accordingly, I am of the opinion that the planning authority was entitled to make the request for the further information as to the state or interest in or right over the land which it considered necessary to enable it to deal with the application. Furthermore it sought the production of evidence which it wished to have to verify the particulars of information given in this regard by the Applicant. I am not satisfied that the response given by the Applicant to the letter of the 1st December, 1999 was a sufficient response to the request made and accordingly I am of the opinion that the local authority was entitled to raise the matter afresh in its letter of 16th February, 2000. Accordingly, I am of the opinion that the conditions necessary for the obtaining of what is referred to as a default permission under the provisions of Section 26 (4) of the Act of 1963 have not been satisfied by the Applicant.

61. Without prejudice to the foregoing, in my discretion I would not be disposed to grant the Applicant the relief which he seeks in these proceedings based upon the delay in serving a notice requiring the further notification of the planning application under the powers contained in Regulations 17 of the Regulations of 1994 in circumstances where on the Order giving leave to the Applicant in these proceedings this matter was not averted to and I believe that if it was to be relied upon it should have been reflected in the Statement of Grounds seeking the relief in these proceedings in the first instance.