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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Marshall & Anor v. Arklow Town Council [2004] IEHC 117 (30 June 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/117.html Cite as: [2004] IEHC 117

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THE HIGH COURT

Judicial Review

HC 249/04

Record No: 2004 No. 363 JR

Between:

Alan Marshall and Carol Marshall

Applicants

And

Arklow Town Council

Respondent

Aine Ni Dhonnachar and David Dempsey

Notice Parties

Judgment of Mr Justice Michael Peart delivered on the 30^th June 2004:

The applicants seek leave to apply for judicial review, under s. 50 of the Planning and Development Act, 2000 ("the 2000 Act), for the reliefs set forth in their Notice of Motion dated 26^th April 2004 (filed the 28^th April 2004).

The decision sought to be impugned is one made by the Respondent on the 18^th February 2004 wherein it decided to grant permission to the first named Notice Party for development of land, namely to erect two town houses and connect to existing services at Ticknock Lane, Dublin Road, Arklow, in accordance with the plans submitted with the application.

The applicants are brother and sister, and together with their elderly mother are the owners of and reside in a house immediately to the north of and adjacent to the development land the subject of the decision to Grant Planning Permission. They have resided there since about 1961.

It appears that in June 2003, the applicants became aware of an application for planning permission which was at that time lodged in respect of this site by the previous owner of the site, one Bridget Keogh. They together with their mother lodged objections to that application, and it is said that as a result of that objection certain conditions were attached to the permission which ultimately was granted, which satisfied the applicants' concerns. That application was for the construction of a single house on the site. It appears that after that permission was granted, the Keoghs placed the site for sale – something which the applicants were unaware of. The site was sold to the first named applicant and one Gary Doyle, who are the co-owners. The second named Notice Party, David Dempsey is a brother of the first named Notice Party, and is a Consulting Engineer who was retained by the Notice Parties in relation to the application for a new planning permission, namely for the erection of two houses on the site.

Unknown to the applicants, this application for a new permission for two houses was lodged with the Respondent on or about the 19^th December 2003. As already referred to, the Respondent issued a Notification of Decision to Grant Permission on the 18^th February 2004. The applicants say that even though construction of these two houses has commenced, no final planning permission has been issued following the Decision to Grant.

At the heart of this application is the contention by the applicants that this Decision is invalid because the owners of the site did not erect, in accordance with the planning regulations, the required Notice under Article 19 of the Regulations, which, if it had been so erected would have alerted the applicants to the intended application, and they say that they would have exercised their rights to object to the application, make submissions and so forth. Unfortunately, as is freely admitted, the Respondent accepts that it did not cause any official to actually inspect the site in order to ensure that the site notice was in situ, but the Notice Parties have sworn that such a site notice was indeed erected in a proper way at the required time. The applicants say that they never saw any such site notice at the relevant time. The affidavit sworn by the first named applicant states at paragraph 10:

"I was shocked to learn that permission had been sought and might have been obtained in respect of two dwellings at the site on Ticknock Lane. I saw no site notice whatsoever during the relevant period. I pass this property regularly, and sometimes twice daily. I walk our family dog regularly and I pass by the lands on Ticknock Lane and I saw no notice of an application. I commonly take an interest in local planning matters and would routinely look at site notices in a casual way."

At paragraph 11 he states that if he had been aware of the application he would have made an objection or observation, and/or participated in an appeal, and that he is satisfied that no such notices were fixed or attached to the lands in question either in December 2003 or January 2004. There is therefore on the affidavits a complete conflict of evidence, since the second named Notice Party, Mr Dempsey has sworn not only that such a notice was placed, but that he himself so erected it, and even that when it fell down he put it back up again. This conflict cannot be resolved by the production of any dated photograph of the sign in position, nor by any evidence from the Respondent that upon inspection of the site at a relevant time, the notice was seen to be in position. If this application proceeds to a hearing, no doubt oral testimony will have to be heard, either by way of Notices to Cross-Examine being served, or by an oral hearing being directed.

The first hurdle placed in the applicants' path is a point being made by the Notice Parties, and which is supported by the Respondent, that the applicants have delayed in bringing this application, and are out of time. It is submitted also on behalf of the Notice Parties that they have been prejudiced by this delay in as much as when the proceedings were commenced they ceased any further construction in order to await the decision of this court. I have been informed by the Respondent that when they learned of the problem emanating from the applicants, they issued an Enforcement Notice to the Notice Parties requiring work to cease for a number of stated reasons, but it has been accepted by the Respondent that for reasons which have not been actually given to the Court the Respondent would not be in a position to enforce that Notice. I mention that point since it is in some respects relevant to the question of prejudice, namely whether by granting leave this Court would be effectively preventing further work being carried out pending the Court's decision, or whether such further work would in any event be prevented by the currency of that Enforcement Notice.

This judgment relates only to the question as to whether the delay in commencing these proceedings is such that the Court ought not to exercise its discretion under s. 50(4)(a)(iii) of the 2000 Act, to extend the time for making application on the basis that the Court "considers that there is good and sufficient reason for doing so."

The applicants say that they first became aware of the fact that development was taking place on the 23^rd March 2004, when the first named applicant observed building on the site in question. At that time, not being aware that the site had been sold on the 19^th December 2003, he presumed that it was Mrs Keogh who was building pursuant to her permission for one house. He goes on to say that on the 25^th March 2004, the second named Notice Party telephoned him to discuss putting a boundary wall between the site and the applicants' adjoining property. He says in his affidavit that at this point, he told Mr Dempsey that "the matter had gone beyond this and was now in the hands of my solicitor." This comment certainly suggests that on some date prior to that conversation the applicants, or at least the first named applicant, had become aware of the later Decision to Grant permission for two houses. It is relevant in this regard to refer to an affidavit sworn on the 26^th April 2004 by Terry Keogh, one of the previous co-owners of the site who sold the site to the first named Notice Party and her co-purchaser. He states at paragraph 7 thereof:

"On the 18^th day of March 2004 I attended at the offices of Arklow Town Council where I saw a notice which indicated that the Notice Parties had applied for and been granted planning permission to build two dwellings on the site at Ticknock Lane."

He also says that he saw no site notices in place, and that he passes the property regularly, and that had one been erected he would certainly have taken an interest in same.

It is reasonable to assume, judging from what the first named applicant stated on the telephone to Mr Dempsey, that at some time prior to that date the first named applicant must have become aware, perhaps from Mr Keogh, that permission was being granted for two houses. The applicants in all probability became aware of this fact about the 18^th March 2004, or immediately thereafter, since by the 25^th March 2004, the applicants had already consulted their solicitor about the matter.

Under s. 50(4)(a)(i) of the 2000 Act, it is provided as follows:

"Subject to subparagraph (iii), application for leave to apply for judicial review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(i) of subsection (2), shall be made within the period of 8 weeks commencing on the date of the decision of the planning authority or the Board, as the case may be."

That being so, and subject to any extension which may be granted, these proceedings must have been commenced not later than 8 weeks from the 18^th February 2004, namely before the 14^th April 2004. These proceedings were filed on the 28^th April 2004, and therefore some 14 days late. It is therefore necessary to consider what steps were taken by the applicants prior to the expiration of that time, and following their becoming aware of the Decision to Grant Permission dated 18^th February 2004. The Court will also consider, as contended for by the applicants, whether the time should be calculated, not from the date of that Decision, but rather from the date upon which the applicant became aware of the making of the Decision, which in my view was sometime between the 18^th March 2004 and the 25^th March 2004. If time is calculated from that time, then the application is not late at all. Alternatively, of course, the applicants submit that the circumstances of this case are such as to provide "good and sufficient reason" as to why time should be extended, if they are out of time.

Mr Michael O'Donnell BL for the Notice Parties has submitted in this regard that time must be calculated from the 18^th February 2004, and that since his clients have suffered prejudice by being held up in relation to the construction of the houses, and since time has expired, it ought not to be extended, and he has referred the Court to some authority in that regard, which I shall consider in due course. But he also makes the point that in the Notice of Motion dated 26^th April 2004, filed on the 28^th April 2004, the applicants do not seek any extension of time for bringing this application, and neither is it stated in the draft Statement of Grounds to be one of the reliefs sought. Counsel seeks to amend his papers in this regard, if necessary.

The first named applicant avers in his grounding affidavit sworn the 26^th April 2004 at paragraph 18 that having taken legal advice "during the Easter vacation" he instructed his solicitor to write to the Respondent and to the first named notice party to inform them of the applicants' concerns about the planning permission. Such a letter was written on the 5^th April 2004 in which the problem of the site notice was outlined, and certainly in the letter to the Respondent which has been exhibited, that body is requested to take "the requisite steps to stop all development until all the proper procedures have been complied with", and it was warned that unless the solicitors heard in reply within 24 hours, they were instructed to seek judicial review. It is safe to presume that the Notice Parties were written to in similar terms.

Solicitors acting on behalf of the notice parties replied by letter dated the 7^th April 2004, stating that their clients were "most upset and infuriated by the allegation that there was a failure to comply with the statutory regulations regarding the publication of the site notice", and confirming that such a notice was erected in accordance with the regulations, and that while they had noticed that on a couple of occasions the notice had been knocked over, or blown down by the wind, or interfered with by third parties, it was immediately re-erected by their clients. They stated that any proceedings commenced would be strenuously defended.

It is clear that by the time the Notice Parties received the letter dated 5^th April 2004, they were aware of the intention of the applicants to commence Judicial Review proceedings in the event that their letter did not evoke a satisfactory response from their viewpoint. This fact has some relevance to the question of the delay in commencement of these proceedings and whether this Court should extend the time for such commencement.

In his supplemental affidavit filed on the 25^th June 2004, the first named applicant, inter alia, makes certain averments relevant to the delay point. He states in paragraph 20 that on the 25^th March 2004 he determined that he would need legal advice and obtained the name of a solicitor to act. This is after having observed building for the first time on the 23^rd March. He instructed that solicitor on the 2^nd April 2004. He avers that this solicitor prepared a case for Counsel to advise during the Easter vacation period. Although it is not averred to, I am entitled to know that this period was from 3^rd April 2004 until 19^th April 2004. He says that a warning letter was sent on the 5^th April 2004. It is averred also that by the 27^th April 2004 papers had been drafted and the grounding affidavit was sworn on the 26^th April 2004, and was filed in the Central Office of the High Court, and were served, on the 28^th April 2004. He states that the absence of the site notice left him ignorant of the planning application in question, and that immediately he learned of it, he acted promptly, and that had he learned of the planning situation at an earlier stage he would have been able to instruct solicitors, and serve the necessary papers closer in time to the date of the decision in question. He also states that before the application could be commenced it was necessary for enquiries to be made of the Respondent Town Council and documents to be inspected, and this took time.

He says in his affidavit, and Counsel has so submitted on his behalf, that it would be unfair to be denied access to the Courts for the purpose of this application because he commenced outside the strict time limit imposed by the Act, and in circumstances where, in the absence of the site notice having been erected, he had no way of knowing that an application had been lodged in the first place. That of course ignores the other requirement on an applicant for planning permission, namely the requirement to place a notice in a national newspaper. In this case I am told that such a notice was inserted in the Evening Herald newspaper. The applicants did not see that notice.

The Notice Parties say that they took steps on foot of the Notification of the Decision to Grant Permission dated 18^th February 2004, namely that they commenced construction of the houses, and that they will be and are prejudiced by the delay on the part of the applicants. Their development is effectively halted until such time as these proceedings are determined. The applicants submit, however, that since an actual permission has not yet issued on foot of that Decision, the applicants are not in any event entitled to have commenced construction. Mr O'Donnell submits, however, that once the Decision has been issued, the Planning Authority must grant permission after the expiration of the appropriate time under the Act.

The submission by the applicants that time should be extended because the actual date of knowledge on the part of the applicants in relation to the decision was 23^rd March in the absence of the site notice being in place, begs the entire question at the heart of this case, namely whether the site notice was or was not in place as required. On that basis, I would have to reject the sworn evidence of the Notice Parties in order to accede to the application for an extension of time, or indeed to find that no such extension is required. On the other hand, to refuse to extend the time would in effect be to reject completely the applicants' averments and that of some other persons who have sworn similarly, that no notice was in place. I cannot on this application make any finding which in any way determines the central issues to be decided.

Before setting out my conclusions in relation to the time point, I want to refer to the submission made by Mr O'Donnell at the outset, namely that this question of delay and extension of time must be disposed of ahead of any consideration as to whether the applicants have made out a sufficient case to be granted leave to seek judicial review. He submitted that it was not appropriate to deal with the substantive issues, and if granting leave in relation thereto, to leave over to the substantive hearing a determination in relation to an extension of time and delay generally. He referred the Court to the decision of the Supreme Court in B. v. The Governor of the Training Unit Glengariff Parade Dublin and another [2002] 2 ILRM 161, wherein it was held, inter alia, that in circumstances where an extension of time is required, until it is granted there is no application for leave in existence. While that decision is in the context of the Illegal Immigrants (Trafficking) Act, 1999, and the time limits specified therein for bringing applications for judicial review, there is no reason why the principles set forth therein ought not to equally apply in the present case when the court is being asked to extend the time for bringing a judicial review application. It follows that this Court must determine first of all whether an extension is required and, if so, whether it should be granted for good and sufficient reason. A refusal of such an extension has the effect of finally determining the application from the applicants' viewpoint, in the sense that without it they cannot proceed further. To deal with the merits of the application at the same time as determining the time point would result in the Court dealing unnecessarily with the substantive merits in a case where an extension of time is found not to be merited. That consideration must outweigh any countervailing consideration such as having the entire matter aired at one sitting, rather than dealing with each aspect separately. I have therefore decided to proceed with my decision in relation to time and delay, and if finding in favour of the applicants on that issue, I will then proceed to fix as early a date as possible for the hearing of the substantive application for leave.

In response to the submissions made on behalf of the applicants by Aillil O'Reilly BL, Mr O'Donnell has referred the Court to the judgment of the Supreme Court (O'Higgins CJ) in The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others [1981] IR. 181, in which the prosecutor's claim failed because he had commenced proceedings for an order of certiorari four months after the decision in question had been made, and because others had taken steps on foot of the decision in the meantime and would be prejudiced if the decision were to be set aside. The then Chief Justice during the course of his judgment stated that as soon as he became aware of the making of the decision in question "it behoved the prosecutor to move with dispatch to have the Commissioners' recommendation undone." He then referred to a judgment of Lord Denning in R. v. Herrod [1976] QB. 540 at page 557 in which that learned judge stated as follows:

"If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court – or any other inferior tribunal for that matter – he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him a remedy. If he has been guilty of delay at all it is for him to get over it and not for the other side."

In The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, O'Higgins CJ stated at page 196:

"What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari."

As I have already mentioned, part of those circumstances were that persons had taken steps on foot of the decision, and, as stated by the late Chief Justice had been "induced to make plans for the future and to enter into commitments from which they should not now be compelled to withdraw."

Mr O'Donnell has submitted in the light of this judgment that in view of the fact that his clients have proceeded on foot of the Decision to Grant Permission, as according to them they were entitled to do given the inevitability of the actual Grant of Permission following, were it not for the intervention of these applicants, they have suffered prejudice in the sense that they have committed funds to the construction of the houses, and the two houses are already partially constructed, one being more advanced than the other, but nevertheless substantially commenced.

I think it must be remembered that the decision in The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, was a result of an application brought under the old Rules of Court, perhaps best described as the predecessor of the current Order 84 procedures, rather than under a Statute containing its own rules as to the time within which judicial review proceedings must be commenced. It is for that reason that the late Chief Justice states that there is an onus on an applicant to move "with dispatch", and in the circumstances of that case a period of four months from the date of the impugned decision was regarded as not fulfilling that criteria. The present Order 84, r. 21(1) of the Rules of the Superior Courts provides:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."

That Rule reflects the need described by the late Chief Justice as "moving with dispatch."

In such an application, the Court can refuse leave even where the applicant has moved first within the outer limit of three or six months, if satisfied that in any event the applicant failed to move "promptly". The situation is different from the present case where the applicant is mandated to bring any application within a period of eight weeks. It must be presumed that the legislature was aware of the provisions of O.84, r. 21(1), and decided that in planning matters there was a need to ensure that applications were commenced within a shorter time than either three or six months, as the case may be, but it cannot be said that even though an application is brought within that period of eight weeks, the Court could nevertheless refuse leave because it regarded the applicant as not having moved promptly within the eight week period. That is a distinction, even though the question of prejudice to the Notice Parties is still a very relevant one within the context of any assessment of the delay on the part of an applicant beyond that eight week period.

First of all I am satisfied that this Court has no power to regard the date of the applicants' first knowledge of the planning decision as the date from which time must be calculated for the purpose of the eight week period. The section is absolutely clear and unambiguous in that regard, and specifies that the application for leave shall be made "within the period of eight weeks commencing on the date of the decision of the planning authority, or the Board, as the case may be."

This application must be considered under s. 50(4)(iii) of the Act, and the Court must therefore be satisfied that there is good and sufficient reason for extending the time. Prejudice is a matter which must be taken into account, and I cannot make any assumption, even confined to the context of the present decision, that the site notice was not in place in accordance with the provisions of the Regulations made under the Act. It falls to be decided solely on the basis of whether the Court is satisfied that in the circumstances of this case the applicants moved with an amount of dispatch, or as promptly as they could reasonably be expected to do in the circumstances in which they found themselves. I must take into account the arguments as to prejudice put forward by the Notice Parties, and balance these factors in order to achieve justice and fairness between the parties.

I am satisfied that the applicants are being truthful when they say they did not see the site notice. That is not a finding that it was not placed there by the Notice Parties. It is simply an acceptance that if it was there the applicants did not see it. That is a reality. Whether it is something they can ultimately rely on in the face of testimony tested under cross-examination at the substantive hearing is quite another matter, but it is something I can have regard to when considering the behaviour of the applicants in relation to the speed with which they moved in this matter. I have outlined the facts regarding the date when they say they first noticed that building had commenced, and the steps they took thereafter to launch these proceedings. They moved from that time with as much haste as was reasonable in the circumstances in which they found themselves. Within a matter of a few days they had engaged a solicitor and he was instructed to write to the Notice Parties and the Respondent, and he did so immediately. Thereafter these parties were at least alerted to the prospect of proceedings being issued, in contradistinction to the persons concerned in the case of The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, to which I have referred, and who had to wait a period of four months before hearing anything from the prosecutor in that case. It is a fact that an Easter vacation intervened and delay resulting from Counsel's unavailability cannot in fairness be laid at the applicants' door. Were it not for the coincidence of that lost time, this application would have commenced within the eight week period. I must take that into account when weighing the competing interests. Prior to that vacation period intervening the Notice Parties and the Respondent were aware of the applicants' intentions.

I am satisfied that the applicants have demonstrated good and sufficient reason as to why time ought to be extended. That reason is the fact that if the sign was in situ they did not see it, and therefore were not aware of fact that time was running against them, and that when they realised the position, they acted as speedily as could be expected in the circumstances. This is a sufficient reason given also that by the 5^th April 2004 all parties were put on notice, and given that the application was filed only fourteen days outside the 8 week period, and that this is accounted for solely, in my view, because of the intervention of the Easter vacation period.

I will also permit the applicants to amend their Notice of Motion by including therein a prayer seeking an extension of time, and extend the time for the commencement of these proceedings up to the 28^th April 2004 which is the date on which the application was filed.

I will also hear the parties with a view to fixing an early date for the resumption of the application for leave, so that the matter can be progressed with the urgency which the case deserves given the prejudice asserted on behalf of the Notice Parties.