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1. On the 28th July, 1995 the Applicant submitted a Planning Application to the Respondent. It sought planning permission for five single storey houses at The Crescent, Beaumont Road, Dublin 9.

2. The application had been preceded by discussions concerning it which had taken place between representatives of the Applicant and the Respondent. The background to those discussions was as follows.

3. The Applicant had completed a development at Beaumont Road, known as Collinswood. A pedestrian route existed from that development to Beaumont Road and on it was a strip of open space. Local residents had become concerned at the misuse of that open space by vandals and youths who conducted cider parties on it. It was felt that the construction of additional houses on the strip of open space would improve the situation. Hence the application which was made on the 28th July, 1995.

4. Once made, the application fell to be dealt with in accordance with the relevant statutory provisions and the regulations in force. Included amongst those statutory provisions was Section 26(4)(a) of The Local Government (Planning and Development) Acts, 1963 to 1993. That subsection provides as follows:-

5. The expression "the appropriate period" which occurs in the subsection which I have just quoted is defined by subsection (b) of the same Section 26(4). In so far as it is relevant to this application, the definition is as follows:-

6. Neither of the circumstances which are dealt with in subparagraphs (i) or (ii) of subsection (b) are relevant to this application.

7. Needless to say, if the statutory provisions which I have just quoted were the only ones applicable, it would mean that a decision on the Applicant's application would have had to have been made and notice of it given by 28th September, 1995. If not, the planning authority would be deemed to have granted permission on the last day of that period. In common parlance, such a permission is known as a 'default permission' and that is the term which I propose to use to describe such a permission in the remainder of this judgment.

8. The two month period is not, however, fixed in an absolute fashion because of the provisions of Section 26(4A). That subsection provides as follows:-

9. In the present case the Applicant sought four separate extensions of time in respect of its application to the Respondent. Each such application was couched in precisely the same terms. It consisted of a single sentence letter which read:-

10. The last such application sought an extension of time up to the 15th December, 1995 for consideration of the application.

11. Each application for an extension was granted by the Respondent. Each Order extending the time was in the same terms. So were the notifications issued by the Respondent to the Applicant concerning such extensions. It is only necessary to quote from the last of these which is dated the 23rd November, 1995. It reads as follows:-

12. It is accepted that the reference in these notifications to Section 39(f) of The Local Government (Planning and Development) Act, 1976 was an error and the appropriate statutory provision which should have be cited was Section 26(4A). Nothing turns on this point.

13. On the 14th December, 1995 the Respondent decided to refuse the planning permission sought by the Applicant.

14. On the following day the 15th December, 1995 notification of the decision was sent to the Applicant's architects by registered post. The choice by the Respondent of this method of communication of their refusal ensured that notice of the decision could not be received by the Applicant prior to the 16th December, 1995. It is common case that it was not in fact received until the 18th December, 1995 which was a Monday.

15. In these circumstances the Applicant contends that it is entitled to a default permission because the planning authority did not give notice to it within the appropriate period.

16. On the assumption that the 15th December, 1995 was the end of the appropriate period then it appears to me that by choosing the method of communication which it did the Respondent effectively ensured that its decision of the previous day would not be communicated to the Applicant within the prescribed time.

17. It is the date of communicaton of the Respondent's decision and not the date of the actual decision which is crucial to the Applicant's case.

18. He went on to say:-

19. In the present case the Respondent served notice by registered post sent on the 15th December, 1995. That, says the Applicant, was the last day of the appropriate period. By adopting this method of service the Respondent ensured that notice would not be received by the Applicant within such appropriate period and consequently the entitlement for default permission is established.

20. If the last day of the appropriate period was the 15th December, 1995, I am of opinion that the Applicant's case is unanswerable. This is so having regard to the dictum in the judgment of O'Hanlon J. which I have just cited.

21. The Respondent in the present case says that the 15th December, 1995 was not the last day of "the appropriate period". Its argument is that the statutory provisions permit of only one extension of time and that therefore after the first extension of time which was to the 27th October, 1995 it was not open to the Respondent to extend time further.

22. The difficulty with this argument from the Respondent's point of view, as I see it, is:-

23. I therefore do not see how it can materially assist the Respondent in the defence of these proceedings.

24. However, in any event, I am of opinion that the Respondent's argument concerning the number of occasions upon which an extension of time can be granted is not correct at law. It appears to me that Section 26(4)(A) expressly refers to the "appropriate period" as that defined in subsection 26(4)(a). That in the context of this case is the period of two months beginning on the day of receipt by the planning authority of the application. Section 26(4)(A) then goes on to permit of an extension of that period and then provides that subsection 4(b) of the section shall, "as regards the particular case to which the extension relates, be construed and have effect in accordance with the extension". This appears to me to mean that when an Applicant makes a request to the planning authority to extend the time for dealing with an application and where the planning authority so consents then the appropriate period is extended for whatever period the planning authority determines since it is they who extend the period in question.

25. There is nothing in this subsection to indicate that not more than one extension of the appropriate period can be granted. It seems to me that once the first extension is granted that extends "the appropriate period". This new extended period is now "the appropriate period" and it in turn can be extended further.

26. In these circumstances I conclude that the Respondent's defence of these proceedings on this ground is not well founded.

27. I must, however, now turn to the second substantial ground which was raised on behalf of the Respondent. It is said, and in my view correctly, that relief of the type which is sought here is discretionary. The Respondent contends that in the exercise of my discretion I ought to refuse this application.

28. I readily accept the reluctance on the part of the courts to declare the existence of default permissions. In Molloy and Another -v- Dublin County Council (1991) IR 90 Blayney J. said of Section 26:-

29. It appears to me that these observations of Blayney J. have much to commend them. However, I cannot lose sight of the fact that he also said

30. Whilst these quotations may suggest a lack of enthusiasm on the part of the court in relation to applications of this sort nonetheless I cannot ignore what the statute provides and so in an appropriate case the Court must enforce it.

31. The principal point which was made suggesting that the Court ought to exercise its discretion against the Applicant was the fact that an appeal procedure on the merits was open to the Applicant but it chose not to pursue it. Had it done so it could have appealed the decision to refuse permission to An Bord Pleanala within one month of the decision.

32. In particular, reliance is placed upon the decision of the Supreme Court in Creedon -v- Dublin Corporation (1984) IR 428 and in particular the observations of McCarthy J. there. He said:-

33. Whilst I have no difficulty in accepting the propositions which were set forth by McCarthy J., I must nevertheless apply the statutory provisions. In my view a complete answer to this objection on the part of the Respondents is to be found in the judgment of Blayney J. in Molloy's case. There he said:-

34. In my view this statement of Blayney J. is entirely apposite to the present case. Consequently, it appears to me that there is no sound basis upon which the Defendants can contend that the Court here ought to exercise its discretion against the Applicant.

35. Neither do I find anything in the conduct of the Applicant to give rise to any form of estoppel which would prevent it from obtaining the relief which it claims.

36. In my view the sole and exclusive cause of this litigation was the behaviour of the Respondent in leaving until the last day but one the making of its decision and then adopting on the last day of the appropriate period a method of communication of the decision which made certain that the decision would not be communicated to the Applicant within the appropriate period. Like O'Hanlon J. in Freeney's case, I am of the view that the Respondent must suffer the consequences of resorting to the method of service which it did. Had it been timeous in effecting service of the notice this difficulty would not have arisen. The fact that the Applicant now has a default permission is, in my view, entirely brought about by the Respondent's own behaviour.

37. Accordingly, I will declare that the Applicant has by reason of the default of the Respondent a valid and subsisting planning permission for the erection of the houses in question in accordance with the plans and specifications which were lodged by it with the Respondent on the 28th July, 1995.