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John A. Wood Ltd. v. Kerry County Council [1997] IEHC 168 (31st October, 1997)
THE
HIGH COURT
No. 1995 No. 208JR
BETWEEN
JOHN
A. WOOD LIMITED
APPLICANT
AND
THE
COUNTY COUNCIL OF THE COUNTY OF KERRY
RESPONDENT
AND
THE
HIGH COURT
1996 No. 46 MCA
IN
THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)
ACT, 1976 AS SUBSTITUTED BY SECTION 19 (4)(g) OF THE LOCAL GOVERNMENT (PLANNING
AND DEVELOPMENT) ACT, 1992 AND
IN
THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF KERRY
BETWEEN
THE
COUNTY COUNCIL OF THE COUNTY OF KERRY
APPLICANT
AND
JOHN
A. WOOD LIMITED
RESPONDENT
JUDGMENT
of Mr. Justice Smyth delivered the 31st day of October 1997
1. These
two inter-related sets of proceedings deal with substantially the same subject
matter. For ease of reference I shall refer to the first set of proceedings as
"the JR proceedings" and the second set of proceedings as "the S.27
application"; I shall refer to the County Council of the County of Kerry as "
the Planning Authority" and John Wood Limited/John A. Wood Limited as "the
Company". These proceedings are concerned with the application and
interpretation of the Local Government (Planning and Development) Acts,
1963-93, which when referred to herein, will be so by reference to the year of
the Act rather than by full title. The proceedings were heard consecutively in
the order of their issue.
2. I
find the following facts to be either agreed or proven on the Affidavits filed
in both the J.R. proceedings and the Section 27 application but I am mindful of
the differences of the reliefs claimed and the degree of proof required in the
respective proceedings:-
1.
By letter dated 16th June, 1980 the Company sought planning permission
from the Planning Authority in respect of the extraction of gravel at Minish,
Carrigeencullia and Ballahacommas, Killarney, Co. Kerry as outlined on plans
received by the Planning Authority on 18th June, 1980. The terms of this
letter are as follows:-
"Please
find enclosed our planning application for extraction of gravel from
the
areas marked 1, 2, 3 and 4 on the enclosed maps. Areas No. 1 and 2 are
immediately
adjoining our existing works at Clasheens and Minish in
Killarney.
Areas
No. 3 and 4 are immediately adjoining land marked No. 6 for which
planning
permission was granted on 6th of July, 1979. The planning register
reference
number. for this area is 695/79.
These
areas of gravel-bearing land are part of our long term planning for our
Killarney
operations. We are unlikely to have commenced operations in each
of
the areas marked 1, 2, 3, 4 and 6 within five years. Should you have any
queries
on the above, please contact me.
Yours
sincerely,
for
J.A. Wood Limited
BRIAN
COFFEY
DIRECTOR"
2.
On 12th August, 1980 the Planning Authority issued a notification of
its decision to grant outline planning permission (subject to conditions) to
the Company.
3.
The decision of the Planning Authority was the subject of a third
party appeal to An Bord Pleanala.
4.
On 27th October, 1981 An Bord Pleanala decided to grant outline
permission, subject to inter alia the following conditions:-
"3.
Access
to sites Nos. 1 and 2 in the townland of Minish shall be via the
existing
to site No. 5. Access to site No. 3 in the townland of Carrigeencullia
and
site No. 4 in the townland of Ballaghcommane shall be via the proposed
access
to site No.6, details of which access shall be submitted for approval.
4.
Before
development commences, the developer shall pay to Kerry County
Council
a contribution towards any expenditure incurred or proposed to be
incurred
by the Council in maintaining the public road to serve sites 3 and 4.
The
amount to be paid and the time and method of payment shall be agreed
between
the developer and the said Council or in default of an agreement shall
be
as determined by An Bord Pleanala.
5.
Before
the development is commenced security by means of a bond or cash
deposit
shall be given to the Planning Authority by the developer to ensure the
satisfactory
completion of all the restoration and landscaping works necessary
to
reinstate the land to the satisfaction of the Planning Authority, or in the
event
of disagreement An Bord Pleanala. The amount to be paid, the time and
method
of payment shall be agreed between the developer and the Planning
Authority,
or failing agreement shall be determined by An Bord
Pleanala."
5.
On 14th January, 1982 the Planning Authority received an application
for planning approval from the Company. Several of the requirements of the
outline permission arising from conditions 1, 2 and 3 were not addressed by the
Company. This fact was drawn to the attention of the Company by letter dated
10th March, 1982 from the Planning Authority.
6.
On 26th March, 1982 the Company made reply and forwarded drawings
125/37. The terms of this letter (received by the Planning Authority on 31st
of March 1982) are of importance, and read as follows:-
"RE:
Local Government (Planning and Development ) Acts, 1963 and
1976) Planning Reg. Nos. 1388/80 and 45/82
Dear
Sir
We
are in receipt of your letter of 10th March and we enclose three (3) copies
of
our drawing No. 125/37 and reply hereunder to your queries.
1(a)
The access to sites (1) and (2) are served by our existing Asphalt Road, A,
coloured
yellow on Drg. 125/37. This road is equipped with water spraying
facilities
and in addition to this we have a mobile water spraying tanker on site.
The
access road from site No. 6 (planning ref. No. 695/79) will have similar
facilities
when constructed and this will serve sites Nos. 3 and 4.
1(b)
We
have shown on drawing Drg. 125/37 the reinstatement, coloured
green,
of sites 1, 2, 3 and 4. The lands will be graded and the top soil
replaced.
They will then be seeded and planted as agricultural grassland and
will
be landscaped to conform with the appearance of the surrounding land.
2.
We will have portable noise monitoring equipment located in the
dispatch
office
as shown on drawing Drg. No. 125/37 so that we can comply with
condition
2 of the outline planning permission.
3.
The
access to site Nos. 1, 2, 3 and 4 is shown on our drawing DRG. no.
125/37
and the access from site No. 6 will be in accordance with planning
permission
No. 695/79.
We
trust that this information is to your satisfaction.
Yours
faithfully
BRIAN
COFFEY
DIRECTOR"
7.
On 7th May, 1982 the Planning Authority issued a notification of a
decision to grant an approval (subject to conditions) bearing reg. ref. 45/82.
Conditions No. 6 and 7 are in like terms to the conditions 4 and 5 contained in
the outline permission of An Bord Pleanala dated 27th October, 1981 (and are,
in my opinion, conditions precedent).
3. The
Planning Authority took the unusual but wisely precautionary step of issuing
with the notification of the grant of permission to the Company a "warning" in
terms that are of importance as indeed is the response of the Company, this
document reads are follows:-
"WARNING
Under
the provisions of Section 29 of the Local Government (Planning and
Development)
Act, 1976 this planning permission for your development at
Ballaghcommane,
Minish, and Carrigeencullia will expire on 26/10/86 and any
development
not completed by that date will be unauthorised unless a further
permission
is obtained. It is important, therefore, in your own interest, to
complete
the form below and to return it to the address shown as soon as
building
commences, in order to ensure that Council records can be kept up to
date
on the development so as to enable a record to be compiled to show that
building
was completed within the time limit. This could be a very important
record
for the future, particularly if it is ever desired to dispose of the property.
To:
Secretary,
Kerry
County Council,
Planning
Section,
Ashe
Memorial Hall,
Tralee.
RE:
Planning Permission No. 45/82
Construction
of the gravel extraction which is the subject of the above planning
permission
started on 21/6/1982 and is expected to be completed by
ongoing/dependent
on market conditions.
(Signed)
-T. Creedon
Applicant
p.p. John A. Wood Limited
Carrigohane Road,
Cork."
(Notwithstanding
what is stated by the parties in that document I am of opinion
that
the permission [i.e. the outline plus the approval] the originating date of
which
is 27th October 1981 terminated on 31st October, 1987 by virtue of the
provisions
of Section 2(5)(b)(ii) of the Local Government (Planning and
4. Development)
Act, 1982.
8.
Notwithstanding the provisions of conditions precedent hereinbefore
referred to and the provisions of Section 26(10)(a) of the Act of 1963 which
provides as follows:-
"(10)(a)
Where
a permission or approval is granted under this section subject
to
any one or more of the conditions referred to in paragraphs (e), (g), and (h)
of
subsection (2) of this section, the permission or approval shall be of no
effect
and shall be disregarded until the condition or conditions has or have
been
complied with
."
neither party seems to have addressed the provisions of this
subsection in 1982. The matter, however, is raised in the JR proceedings by
way of defence by the Planning Authority at paragraph (8) of the Grounds of
Opposition.
9.
Access to sites 3 and 4 by virtue of the planning permission register
ref. 45/82 was intended to be via the proposed access to site No. 6. As
previously noted from the letter of 16th June, 1980 planning permission for
site No. 6 had already been the subject of an earlier planning permission (reg.
ref. 695/79) notification of a decision to grant which is dated 6th July, 1979.
Suffice it to say that by the application of Section 2(5)(b)(ii) of the Act of
1982 that permission expired or terminated in August 1986. Works of
extraction were carried out by the company prior to 31st October, 1987 on sites
No. 1 and 2.
12.
The averment by Donal Kiely in paragraph 13 of his affidavit sworn on
the 5th July, 1996 in the Section 27 application is to the following effect:-
"Planning
permission (695/79) in relation to site No. 6 was subject to
conditions
including a condition that 'before any materials are removed from
the
site large scale details of exit onto public road shall be submitted for the
approval
of the Planning Authority, in order to avoid a traffic hazard'. I say
that
no such details of any exit in relation to site No. 6 were submitted to the
applicant
and, in fact no works were ever carried out by the respondent to the
said
area No. 6 pursuant to the said planning permission in relation to any exit
or
otherwise. I say that the said planning permission in relation to area
No.
6 expired on the 8th day of August 1986. No application for renewal or
otherwise
of permission No. 695/79 has ever been received by the Applicant
herein
from the Respondent despite the notification to the Respondent that the
said
permission No. 695/79 had expired contained in letter dated 7th July,
1988
already exhibited herein. Consequently I say and believe that the
Respondent
now has no authority to break or create any entrance/exit to or
through
the said area no. 6 onto the public road pursuant of the said
permission
(695/79) or otherwise. I say that a plan or drawing of the
entrance/exit
was never formerly submitted by the Respondent to the Applicant
and
that at a meeting between the parties in April 1994 referred to at
paragraph
No. 3 of the affidavit of Colm Kennelly filed on behalf of the
Applicant
herein in the aforesaid Judicial Review proceedings the Respondent
herein
inter alia furnished the Applicant with a drawing of the said
entrance/exit".
5. In
my judgment this averment is not satisfactorily answered by the averment of
6. Brian
Coffey at paragraph 15 of his affidavit sworn on 24th September, 1996.
7. I
am satisfied and find as a fact that planning permission for sites 1, 2, 3, 4, 5
and
6 the subject of reg. ref. 1388/80 and 45/82 were linked and intended to be
linked
to the planning permission 695/79 as per the Company's letters of 16th
8. June,
1980 and 26th March, 1982.
13.
By letter dated 7th July, 1988 the Planning Authority indicated in
unequivocal terms that an opening had been made in the road boundary fence and
that a roadway and access/exit which was under construction were unauthorised
and advised the Company to cease immediately the unauthorised development. I
am satisfied and find as a fact that the planning authority did not give any
incorrect information to the Company in their letter notwithstanding a somewhat
unhappy mode of expression. A letter of muted apology from the Company dated
12th July, 1988 notes:-
"The
development of the area you mention was unfortunately delayed for
various
reasons and therefore it appears that inadvertently it is now
unauthorised.
We regret this situation and accordingly have ceased work in
the
area concerned and we are contacting the planning department in order to
take
the necessary steps to rectify the situation".
[The
company had other sources of material within the same area to meet the
requirements
of its customers in the period after 1987].
14.
Notwithstanding this almost continuous live planning history a hiatus of
some seven years follows. In 1994 there were some inconclusive negotiations
between the parties. It was not until 21st April, 1995 that the Company
submitted an application to the Planning Authority under Section 4 of the Act
of 1982 for an extension of "the appropriate period" in respect of planning
permission (outline permission 1388/80 plus approval reg. ref. 45/82) which is
unequivocally stated to have ceased on 31st October, 1987 and noting the date
of commencement of development as September 1982. The letter accompanying the
application form, and bearing the same date noted at item (k) as follows:-
"Date
on which development is expected to be completed;-
January
1st, 2008,
depending
on market forces and the demand for gravel in the area".
9. The
Planning Authority's response to the application was conveyed to the
10. Company
by notice dated 16th June, 1995 in the terms following:-
"Local
Government (Planning and Development) Acts, 1963 - 1992 Ref. No. in
Register
1388/80 to Mr. Anthony Creedon, John A. Wood Ltd., Carrigrohane
Road,
Cork Re: Application by John A. Wood of Carrigrohane Road on
21/4/1995
to extend planning permission granted on 27th October, 1981 to
develop
gravel pits at Ballahacommane, Killarney, Co. Kerry Reg. Ref.
1388/80
A
decision to refuse to extend the appropriate period as regards the above
mentioned
permission was made on 15th June, 1995.
The
reasons for refusal are set out hereunder:-
1.
Substantial development on the overall site area had not been carried out by
expiry
date in 1987.
2.
The excessive gap in time between the expiry date in 1987 and the current
application for time extension (almost 8 years).
3.
Third Party rights of appeal would be compromised if the extension was
given.
There are quite a number of dwellings in close proximity to plots Nos. 3
and
4 in particular.
4.
The development of plots nos. 3 and 4 would not be completed within a
reasonable
time period. The Applicant states January 1st, 2008 as the
completion
date but that depends on "market forces and the demand for gravel
in
the area".
Dated
16th of June 1995"
11. The
impasse that arose as a result of this exchange resulted in the Company
seeking
and obtaining an order from Flood J. on 27th July, 1995 for leave to
apply
for Judicial Review, for:-
(a)
An Order of Certiorari setting aside the decision of the Planning Authority
refusing
the extension of the planning permission.
(b)
An
Order of Mandamus directing the Planning Authority to grant the
application
for the extension of the planning permission.
(c)
An Order directing the Planning Authority to further consider the
application
for the extension of the planning permission.
15.
On the 4th August, 1995 a notice of motion returnable for 9th October,
1995 issued pursuant to the order Flood J. This was followed by a series of
lengthy and detailed affidavits over a period between 23rd November, 1995 and
1st March, 1996 in which charge and counter charge were made. The Judicial
Review proceedings were adjourned from time to time by consent of the parties.
16.
By letter dated 12th February, 1996 from the Company's Solicitor to the
Planning Authority a new element of controversy was raised.
12. The
contention of the Company was that
(1)
the application for Judicial Review was irrelevant, and
(2)
there was no time limitation on the planning permission held by the Company on
the basis of Section 2(2)(a)(ii) of the Act of 1982 with specific reference to
a condition of a kind described in Section 26(2)(j) of the Act of 1963 and
condition 1(b) and 1(e) of the decision of An Bord Pleanala dated 27th October,
1981. The letter concludes thus:-
"
Our clients are informing you of this as a matter of courtesy and to let you
know
that they will in due course be resuming work in their Eastern lands".
13. The
response of the Planning Authority to such a challenge was predictable -
given
the background to date - and it is to this effect:-
(a)
If the judicial proceedings are irrelevant - please withdraw same and pay
our
costs.
(b)
A rejection of the interpretation of the statues and planning conditions.
(c)
A warning that if work is begun an application will be made to the Court
prohibiting
its continuance and an order seeking restoration of the land to its
pre
development state would be sought.
14. A
further exchange of correspondence of 4th and 17th April, 1996 brought
maters
to a head when the Planning Authority issued on 2nd May, 1996 a
15. Warning
Notice under Section 26 of the Act of 1976, as amended by Section 20
of
the Act of 1992, in relation to unauthorised development of land.
17.
The pace of events accelerated towards the end of May 1996 when the
Planning Authority were notified by letter dated 21st May, 1996 by Third
Parties that as of that date alleged unauthorised development was taking place
on a site entrance to the access/exit for sites 3 and 4. (This development
occurred against the background of the Warning Notice hereinbefore referred to).
16.
The grounds for objection noted by the Third Party were as follows:-
"(i)
The constant flow of traffic from the site presents an immediate
danger
to
the
children living and playing in the area.
(ii)
The road from Ballough Cross down to Carrigeencuilla has just been
resurfaced.
It was in very bad condition due to heavy machinery and lorries.
(iii)
The
dust, dirt and noise from such site would pollute the general area,
damaging shrubbery and devaluing property, with obviously a lot at stake for
at
least twenty five householders in the area".
17. The
letter concludes by stating that if the Planning Authority do not
"put
a stop
to
this development immediately"
the
residents "
have
every intention of taking
this
matter further".
18. On
the following day 22nd May, 1996 the Company wrote to the Planning
19. Authority
as follows:-
"RE:
Planning Ref. No. 45/82
Dear
Sirs,
You
are aware that
we
are now commencing work
on sites 3 and 4 of the above
mentioned
planning permission and as a result will in the very near future be
using
the public road serving these sites.
Under
condition No. 6 of the aforesaid mentioned permission we are required
to
make an agreed contribution towards any expenditure incurred by the
Council
in maintaining this public road serving sites 3 and 4.
I
would like to arrange to meet with you to agree the amount, timing and
method
of payment of this contribution at your earliest convenience. Please
contact
me at the above number so that we may arrange this meeting.
I
trust this is in order and look forward to hearing from you.
Yours
faithfully,
JOHN
A. WOOD LIMITED
ANTHONY
CREEDON".
20. I
note in parenthesis that:-
(a)
The letter is an open letter not written without prejudice to any previous
correspondence,
dealing or contention(s) of the Company.
(b)
What is stated concerning sites 3 and 4 is in marked contrast to and in
contradiction
to what is stated in the Company's letter of 21st April, 1995,
paragraph
(1)
[The
final exchange of correspondence on 24th and 27th May, 1996 is
unremarkable].
18.
A notice of motion dated 28th May, 1996 returnable for 30th May, 1996
initiated the Section 27 application, a number of affidavits were sworn therein
over a period from 28th May, 1996 to 24th September, 1996.
21.
It is against this factual background that a consideration of the
legal issues must be undertaken.
Statutory
Frame Work
22.
A limitation of the duration of a planning permission is prescribed
by Section 2 of the Act of 1982; Section 4 of the Act of 1982 Act contains
provisions enabling the duration of a planning permission to be extended. The
appropriate regulations are the Local Government (Planning and Development)
Regulations, 1994 (S.I. No. 86 of 1994) Part VI, Regulation 80 provides that an
application for the extension under Section 4 shall be "
not
earlier than one year before the expiration of the appropriate period sought to
be extended'"
23.
In essence the Planning Authority, on receipt of an application for
an extension of "
the
appropriate period"
must be "satisfied in relation to the permission that-
(i)
the development to which such permission relates commenced before the
expiration of the appropriate period sought to be
extended, and
(ii)
substantial works were carried out pursuant to such permission during such
period, and
(iii)
the development will be completed within a reasonable time".
[S.4 (1)(c) of the 1982 Act]. The interpretation of the provisions
of Section 4 of the Act of 1982 has been the subject of extensive judicial
consideration, and Counsel for the parties have cited and relied in their
submissions on the following case law (in order of date of determination).
The
State, McCoy -v- Dunlaoghaire Corporation
[1985]
ILRM 533;
Frenchurch
Properties Limited -v- Wexford County Council
[1992] 2 I.R. 268; [1991] ILRM 769;
Garden
Village Construction Co. Ltd -v- Wicklow County Council
[1994]
2 ILRM 527 S.C., [1994] 1 ILRM 354, HC and
Littondale Ltd. -v- Wicklow County Council
(unreported
10th July, 1996 - Laffoy J.)
24.
Before considering the provisions of the Act of 1982 upon which the
parties concentrated, I am of opinion that the provisions of the Act of 1963
are in point. I find as a fact that (a) the outline permission and approval
in relation to the lands contained conditions pursuant to Section 26 (e), (g)
and/or (h) of the Act of 1963 which conditions were not complied with before
any alleged development pursuant to the said permission was commenced; and (b)
the permission was of no effect and strictly speaking, any works, (if any), as
may have been carried out thereby, whether within the appropriate period or
without, should be disregarded for all purposes connected with the application
made under Section 4 of the Act of 1982. I do not say that they are not part
of the planning history but if works have been carried out outside the
appropriate period or within the appropriate period on foot of an ineffective
permission, then such works cannot give rise or act as a basis for reliance as
works carried out pursuant to a valid, effective, planning permission.
25.
In the instant case at least conditions 4 and 5 of An Bord
Pleanála's decision of 27th October, 1981 fall within the specific
categories provided for in Section 10(a) of the Act of 1963. The following
subsection, although generally thought to be a mere protection of common law
rights seems to me to reinforce the matter of effectiveness of a permission, as
it provides -
"(ii)
A person shall not be entitled solely by reason of a permission or
approval
under this section to carry out any development".
(c) While
the parties to these proceedings do not appear to have addressed the affect of
S. 26(10(a) of the Act of 1963 until the issue was raised in the Grounds of
Opposition in the J.R. proceedings this does not mean that the Court can or
should ignore the statutory requirements.
26. Even
if my findings and conclusions are incorrect on this issue, that would not be
the end of the matter because -
27. I. The
application under S. 4 of the Act of 1982 was not made within the time
prescribed by the Regulations or within a reasonable time thereafter, if such
be permitted. Further even if so permitted no reasonable explanation for the
delay in the bringing of the application has been tendered to the Court to my
satisfaction. Furthermore, I decline to infer from the planning history or the
evidence, that merely because as a matter of probability the originally
intended development would exceed 'the statutory five years' that either -
(i) the
Planning Authority ought to have expected or anticipated an
application
under S. 4 of the Act of 1982, or
(ii) that
the statutory or regulatory provisions would not be adhered to.
28. II. Access
from areas 3 and 4 was to be via an access from area 6 - the origin of the
provision of that access arose out of, and was part of the development intended
to be undertaken under sanction of the planning permission dated 6th July, 1979
(Reg Ref 695/79). The development upon which an applicant under S. 4 of the
Act of 1982 may rely must have taken place under "such permission" as is relied
upon for the extension of the appropriate period (
Garden
Village Construction Co. Ltd -v- Wicklow County Council
[1994] 2 ILRM 527). In the instant case, such works are alleged to have taken
place on the area 6 access, were either purportedly undertaken on foot of (a)
an expired permission 695/79 or (b) an ineffective permission 1388/80 because
of the provisions of S. 26(10)(a) of the Act of 1963, or (c) a permission a
condition (viz. Condition 3 of the decision of An Bord Pleanála dated
27th October, 1981) which was unsatisfied or not complied with and ought to
have been complied with or satisfied before any development or use or works
were (if they were) to be relied upon.
29. III. In
the decision dated 16th June, 1995 of the Planning Authority hereinbefore
recited, four reasons were given for refusing the extension of the appropriate
period. It is appropriate that these now be considered in detail -
"1. Substantial
development on the overall site area had not been carried out
by
the expiry date
".
30. In
the context of the J.R. proceedings it is not the function of the Court to act
as an appellate tribunal, or to usurp the function of the planning authority.
If it were to be a matter of appeal I would be inclined to the view that the
extraction of quantities, such as are stated in the Company's application dated
21st April, 1995, represented substantial works - but is not a matter of
appeal. The analysis of the provisions of S.4 of the Act of 1982 by Gannon J.
in the
State
(McCoy) -v- Dun Laoghaire Corporation
(1985) ILRM 533 at page 535 as adopted and amplified by Laffoy J. in
Littondale
Ltd -v- Wicklow Co. Council
(unreported 10/7/96) at p. 10 of the typescript of that judgment is applicable
in this case. While there were opposing views canvassed in the course of the
hearing of the proceedings as to whether such works as were alleged to have
been carried out were "substantial works" I am of opinion that what are or are
not substantial works in any one case must be left to the Planning Authority to
decide in each case based on its own merits. This was the approach applied by
Lynch J. in
Frenchurch
Properties Ltd -v- Wexford Co. Council
(1992) 2 IR 268 at p. 282 and I happily adopt this approach. Indeed in
considering "the overall area" The Planning Authority gave the benefit of any
element of doubt to the company. More importantly I am satisfied that such
development as might possibly have been relied upon by the Applicant was not
carried out by the expiry date in 1987. Accordingly the company failed to
satisfy S. 4(1)(c)(i) and (ii) of the Act of 1982.
"2. The
excessive gap in time between the expiry date in 1987 and the current ap
plication
for time extension (almost 8 years).
"
31. While
this does not expressly refer to the 1994 Regulations hereinbefore referred to
- it is quite clear to me that it is so intended. Regulation 80 provides that
as regards a particular permission, an application for an extension of time "
shall
be
made not earlier than one year
before
the expiration of the appropriate period sought to be extended". Regulation
81(g) indicates that one of the particulars to be given on an application is -
"the date on which the permission
will
cease, or ceased to have effect". While it would have been preferable if the
Planning Authority had adhered more closely to the wording of the provisions of
S. 40 of the Act of 1982 and of the 1994 Regulations, the sense of what is
intended to be conveyed is relatively clear and is supported by the averments
in the affidavit of Donal Kiely sworn on the 27th November, 1995. I do not
accept that the gap in time had its origin in any default by the Planning
Authority. The statutory requirements existed for years before the company
betook itself to address its problem. It is equally clear to me that the
Planning Authority was not satisfied that the requirement of
32. S.
4(1)(c)(i) had been met.
3. Third
party rights of appeal would be compromised if the extension was given. There
are quite a number of dwellings in close proximity to plots Nos 3 and 4 in
particular
"
33. In
my opinion this is no reason for refusal of a S.4 application. It is an
irrelevant consideration which in the normal course could lead to an order for
Certiorari. Were there not the very considerable bulk of findings against the
company I would be minded to quash the decision of 16th June, 1995 because of
the insertion of this reason and refer the matter back on a continuance basis
to the Planning Authority to reconsider the application. However, because of
my findings and conclusions on the applicability of S. 26(10(a) of the Act of
1963 and the other aspects of the S. 4 application I do not adopt the course of
referring the matter back to the Planning Authority.
4. "The
development of plots 3 and 4 would not be completed within a reasonable time
period. The Applicant states January 1st 2008 as the completion date but that
depends on 'market forces and the demand for gravel in the area'
".
34. It
is clear that the company failed to satisfy the Planning Authority, and ac
cordingly
the application failed to pass the test set out in S.4(1)(c)(iii) of the
35. Act
of 1982. Any doubts I might entertain concerning reason (1) and my views
on
condition (2) cannot and do not defeat reason (4) given by the Planning Au
thority.
36. IV. The
company contended that there was no time limitation on the planning permission
held by the company on the basis of S.2(2)(a)(ii) of the Act of 1982 with
specific reference to a condition of a kind described in S.26(2)(j) of the Act
of 1963 and condition 1(b) and 1(c) of the decision of An Bord Pleanála
dated 27th October, 1981.
37.
In
my judgment this contention is ill founded because S. 26(2)j) of the Act of
1963 is concerned with '
temporary
permissions' as is clear from the reference to "a specified period". Indeed,
S.56(1)(d) of the Act of 1963 dealing with the exclusion of compensation in
respect of certain matters refers back to S.26(2)(j) in terms of a permission
which relates to a
temporary
structure.
38. S.27
of the Act of 1963 deals with retention permissions - and has no relevance to
the instant case, and if it had S.27(2)(d) again refers to 'a specified
period'. While it may be true to say that structures on or about quarries are
of a temporary nature and depend on either whether the quarry is being worked
or not, or whose use may cease or become redundant depending on the life or use
of the quarry, or may require to be removed to give effect to a reinstatement
obligation, I am of opinion that the nature or kind of permission envisaged in
S.26(a) and 27 is different in kind to that in the instant case. Even if I be
incorrect in this view, it seems to me that the correct interpretation of
S.2(2)(a)(ii) of the Act of 1982 is that the
condition
of a kind envisaged by ".26(2)(j) or S.27(2)(d) of the Act of 1963 in a
permission still remains to be discharged and fulfilled. In other words those
usually unattractive conditions in economic terms remain to be and can be
lawfully discharged or fulfilled outside the usual five year term or period.
39. In
the second edition of Walsh on Planning and Development Law, authored by Keane,
J. in his editorial capacity, the matter is dealt with thus at paragraph 6.31
at p. 60 -
"Section
2 of the Act of 1982 now sets the limits on the duration of planning
permissions. The new provisions do not affect permissions for the retention of
structures, permissions granted for a limited period or the continuance of a
use in accordance with a permission. In addition, the expiration of a
permission does not affect the obligation to comply with the conditions
attached to the permission".
40. In
my judgment, and with unfeigned respect to Keane J., this correctly states the
law and is, in the manner I have indicated, applicable to the instant case.
41. Accordingly
the order in the J.R. proceedings will be to discharge the order of Flood J.
dated 27th July, 1995 and dismiss the application.
42. The
order in the S. 27 application will be in the terms of paragraph numbers 1, 2
and 3 of the Notice of Motion.
© 1997 Irish High Court
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