THE  HIGH  COURT
[2004] IEHC 313
JUDICIAL REVIEW
2004 NO. 363JR
IN THE MATTER OF SECTON 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000
BETWEEN:
ALAN MARSHALL AND CAROL MARSHALL
APPLICANTS

AND

ARKLOW TOWN COUNCIL
RESPONDENT

AND

AINE NI DONNACHAR AND DAVID DEMPSEY
NOTICE PARTIES

Judgment of Mr Justice Michael Peart delivered the 19th day of August 2004:

Nothing is more likely to disturb the peace and tranquillity of a small rural neighbourhood than the unexpected commencement of building upon a site. When some mystery surrounds the identity of the developer, and when the development is one which has taken those in the neighbourhood by surprise, folk who normally enjoy a quiet and gentle disposition become agitated, and are wont to don, for a time at least, the unfamiliar mantle of combatants in support of those who wish to examine the process by which such a thing could happen. That is what has come to pass in the area of Ticknock Lane near Arklow, Co. Wicklow. 

At the heart of this application for an Order of Certiorari in respect of a Decision to Grant Permission for the erection of two houses on that lane, is the question of whether there was or was not a site notice erected and duly maintained at the site in accordance with the requirements of Article 17(1)(b),19 and 20 of the Planning and Development Regulations, 2001 (S.I. 600 of 2001) (“The Regulations”). That is one purely factual matter which the Court has to consider. 

Another matter for consideration is whether, especially in the light of the applicants’ allegation that no such site notice can have been so erected, and so maintained in position, the fact that the Respondent Planning Authority for the area, as is admitted by it, failed to inspect the site within that five week period in order to satisfy itself that a site notice was duly erected and maintained, is a breach of any obligation upon it under the said Act and Regulations which is sufficient to render the Decision to Grant Permission invalid.

Background Facts:
In about May 2003 Bridget and Terry Keogh (“the Keoghs”) bought and moved into a house at the corner of where the Dublin Road meets Ticknock Lane. Mrs Keogh stated in her cross examination that they had bought the property as an investment. Their entrance is on the Dublin Road, but behind their house is a site capable of development. 

In about June 2003 they decided to apply for planning permission for the erection of a single dwelling on that site. They placed the usual notice in the Evening Herald newspaper and erected a site notice on the Dublin Road in accordance with the Regulations. But, in addition, they also consulted their neighbours, including the applicants herein, and discussed with them what was proposed. When the Marshalls  became aware of this application, they lodged an objection, as was their right. Planning Permission was granted in due course, but in order to satisfy their objection a condition was attached to the permission which was granted, and they were content. 

However, after permission was granted and without any further consultation with their neighbours, the Keoghs decided not to develop this site themselves, but rather to sell it with the benefit of the planning permission which had been obtained. For some reason the site was not publicly advertised. No “for sale” notice was erected. Negotiations for the sale of the site were conducted through a firm of auctioneers and appear to have been concluded by about the 10th December 2003. A Contract for Sale was executed by a solicitor in trust for the purchaser on the 19th December 2003. The identity of that purchaser was not disclosed on the contract document, but included among the Special Conditions in the contract was one at para 8 thereof, by which the Keoghs agreed as follows;

“No objection shall be made by or on behalf of the Vendors to any proposed development by the purchaser on the site the subject of this sale.” 
That clause is written in handwriting, and replaced the original typed para. 8 which read as follows:

“The (sic) should the vendors at any time in the future grant the purchaser a way-leave over the retained lands to enable the purchaser to lay pipes in order that he may connect into the vendors existing septic tank.(sic) This way-leave agreement shall be for a single dwelling only. It is expressly agreed between the parties, that they shall share equally the costs of insertion of a bio cycle system if required, and it is further agreed that each party shall be responsible for 50% of the costs of general maintenance of the septic tank.” 

It seems clear from the wording of this original clause that the Keoghs envisaged that only one house was to be constructed by the purchaser, but some further discussion must have taken place prior to final execution which resulted in the deletion of this clause and its replacement by the one which appears above. I have no evidence as to whether or not the Keoghs were aware at that time that the purchaser intended to apply for a new permission to erect two houses on the site.

As I have stated this contract was signed in trust on the 19th December 2003, and on the very same date an application was lodged by the first named Notice Party for permission to erect two houses. She and one Gary Doyle were the actual purchasers of the site. The application form itself was signed by the second named Notice Party who is a brother of the first named Notice Party, and is a Consulting Engineer who prepared the plans and the application for planning permission.

 It would appear from the evidence which I have heard that prior to the agreement to sell to them, she and Mr Doyle were confident that they would be successful in the negotiations for purchase, and were able therefore to be in a position by the 19th December 2003 to have all the necessary plans and documentation ready for lodgment in the planning office of the Respondent immediately after the contract was executed in trust on their behalf. In fact the application form itself is dated the 17th December 2003. In addition they were able to lodge the notice with the Evening Herald which actually appeared in the edition of that newspaper on the 19th December 2003 itself. That presumes that it was submitted to that newspaper at least the previous day. It is certainly clear that everything was in readiness as far as the new application for planning permission was concerned prior to the actual execution of the contract, so that not even twenty four hours was lost in making the application. 

No objections to the application for permission were received by the respondent, and by Notice dated 18th February 2004 the Respondent notified the first named Notice Party that it had decided to grant permission for the erection of two houses on the site in question. Fifteen conditions were attached to the decision, four of which have some relevance. Those relate to financial contributions which would have to be made to the Respondent in respect of the cost of providing roads, water and sewage, recycling facilities, recreation and amenity, facilitating the site development. The conditions in question require that these contributions be made “before development commences”.

There followed the four week appeal period before final permission would be granted. No appeal was lodged during that period. But prior to any Grant of Permission being issued on foot of the Decision dated 18th February 2004, and prior to making any of the financial contributions, or the service of a Commencement Notice, work was commenced for the erection of two houses on the site. This date of commencement is generally accepted to have been about the 18th March 2004 – in other words immediately after the expiration of the appeal period. 

The commencement of work did not go unnoticed by those in the neighbourhood, but it was assumed at first that the work being done was in relation to the development of one house pursuant to the earlier planning permission obtained by the Keoghs.

 It would appear that Mr Keogh happened to be in the planning office in Arklow on the 18th March 2004 in connection with some unrelated matter, and saw a notice on a notice board in that office indicating that permission had been granted for two houses on the site which he and his wife had sold. He was surprised at this since he could not recall seeing any site notice even though he passes the site regularly. This must have been around the time work had actually commenced, but it would appear that Mr Keogh had not become aware of the fact by the time he spotted this notice in the planning office. He made further enquiries about the matter and spoke to a couple of officials in that office. It was confirmed to him by them that no inspection of the site had taken place within the 5 week period from the date of the application, to enable it to be confirmed whether during that period a site notice had been in place. It is worth referring at this point to the fact that the site was inspected on 4th February 2004 by Mr Sean Dunne, a planning technician with the Respondent. He completed a form, as is his habit following an inspection, which is headed “Arklow Town Council – Inspection of “site notice” in accordance with article 17(1)(b) of Planning Regulations”.

On this form there are four boxes underneath which the words “Yes/No” appear. This implies that the person completing the form must write either of these words, as appropriate, in each box. The boxes relate to whether there was a site notice present at the site when it was inspected, and whether it was legible, easy to see, sufficient, and in compliance with the requirements of article 17(1)(b) of the Regulations. In each box on this particular form, Mr Dunne inserted an “X”, rather than the word “Yes” or the word “No”. The “X” in each box was intended by him to mean “No”. For some reason which I do not understand, the “X” in each box was taken by the relevant official examining the file for the purpose of the Decision to Grant Permission, to read “Yes”. However, the fact of the matter is that if the site notice was erected at the site on the 19th December 2003, the 5 week period during which it must remain in place would expire on the 23rd January 2004, whereas this inspection was not made until 4th February 2004 by which time there was no longer any requirement to have the notice  in place. Mr David Dempsey, the engineer brother of the first named Notice Party, stated in evidence that on the very day that the time for having the notice in place expired, he attended at the site and personally took it down and put it and the post to which it had been attached into the back of his Jeep. He did not keep it.

On discovering these matters, the Keoghs felt obliged, according to their evidence, to tell their neighbours about the fact that the new owners had been granted permission for the erection of two houses, since it is a close community and they had sold the site with permission for one house which the neighbours knew about. They did not consider that two houses were appropriate on that site and felt morally bound to tell the neighbours what they had discovered, even though there was a clause in the Contract for Sale by which they had agreed not to object to “any proposed development by the purchaser on the site”. They consider the development to be too big for the site and are concerned that some of their neighbours will be overlooked. They are also concerned that none of those affected by the development had any opportunity to lodge objections to what was proposed since no site notice was in place, and they think it is wrong. In cross-examination, the Keoghs were challenged over the fact that they were now, allegedly in breach of their contractual obligation not to do so, making an objection to the application for permission by the first named Notice Party and Mr Gary Doyle. However, they believe that by supporting the applicants in the present application for Judicial Review they are not in breach of the Special Condition to which I have referred, which is in their view confined to lodging an objection to an application for permission within the time specified for doing so after the application is lodged.

By the 24th March 2004 the neighbourhood had become aware of the second application for permission for two houses, and galvanised themselves into action. For example, Mr Coates met two people walking in the lane who made some remark to him about two houses being built. He was surprised as he had assumed it was the single house development which he knew about. He went to the planning office the following day to make enquiries about how it could arise that permission was granted in the absence of any site notice. He was told that the matter of the site notice was being investigated. Mr Coates was contacted the following day by Mr Dempsey who wanted to discuss the question of a boundary wall between the site and Mr Coates’s house which adjoins, and who apparently indicated to him that no windows would overlook his house. He says that there is no way that he would not have spotted a site notice if one had been erected in the lane at the site as he walks past the site several times a day, and that if he had seen the notice he would certainly have exercised his rights to lodge objection and to appeal, if necessary.

 Mr Coates also spoke to Mr and Mrs Marshall, the applicants herein. Other neighbours were equally concerned as they also could recall no site notice, such as Mr McGuire who lives immediately opposite where Mr Dempsey states he placed the site notice. He says he could not have missed the notice if it had been there for the 5 week period, as he would have passed it several times each day. Other neighbours have sworn affidavits saying that they pass the site on foot regularly and never saw any notice at the site. They have each been cross-examined on their affidavits also, and there is nothing to be gained by setting out each of the evidence in full. Suffice to say that each denies that there could possibly have been a site notice otherwise they would definitely have seen it, and each have denied that they saw the notice which was inserted in the Evening Herald on the 19th December 2003. 

 On the 25th March 2004 a warning letter pursuant to s.152 of the Planning and Development Act, 2000 was sent by the respondent to Mr Dempsey, stating that work had commenced without compliance with the conditions contained in the planning permission, and calling upon him to cease all works. Mr Dempsey responded by letter dated 31st March 2004 enclosing a part payment of €10,000 and making a proposal to make further payments in the months following, and enclosed some revised drawings related to footpath layout,  and showing the location of sewerage connections, and manholes. He concluded by expressing the hope that what was now supplied was sufficient to comply with their requirements, and that he would expect to commence works again as soon as possible.

Mr Dempsey had stated in his replying affidavit that the Commencement Notice was served ahead of actual commencement but that appears to be incorrect. He also stated in his cross-examination that it was normal enough in his experience for works to be commenced ahead of the financial contributions being made, and even ahead of a Commencement Notice being served. He felt that a lenient approach to such matters was taken by the Council. 

I am presuming that significant work was done on the site thereafter since by the time the application for Judicial Review was prepared, photographs show significant blockwork in place in relation to both houses. These proceedings were commenced on the 28th April 2004 by the filing of the Notice of Motion herein dated 26th April 2004. I have already ruled on the question of an extension of time, and have granted same. On the 20th May 2004 the Respondent served an Enforcement Notice requiring the first named Notice Party “to cease the unauthorised use (buildings under construction)” at the site, and “to remove the unauthorised structure within 4 weeks of the date of this Notice.”  Work ceased. But I am not sure whether it ceased as a result of the commencement of these proceedings or only as a result of the service of the Enforcement Notice. Nothing turns on that in any event.

The Marshalls, the Keoghs and Mr Coates had sought legal advice at the end of March 2003 from solicitors now acting on behalf of the applicants. A letter was written immediately by those solicitors on the 5th April 2004 to the Respondent.  The problem about the site notice was referred to, as well as the fact that building appeared to have been commenced ahead of compliance with statutory requirements  -  presumably a reference to the absence of a commencement notice, the failure to make the financial contributions, as well, presumably, as the fact that a final grant of permission had not issued following the expiration of the appeal period. 

Be3fore dealing with the legal issue arising, I need to summarise as best I can the evidence relevant to the existence of the site notice, contained in the affidavit of Mr David Dempsey who has been in charge, so to speak, of this development on behalf of his sister, as well as Mr Gary Doyle, Mr Edward Doyle. I will also outline the evidence of Mr Sean Dunne, a planning technician with the Respondent, and the cross-examination of each.

David Dempsey’s evidence:

In his affidavit he refers to the agreement to purchase the site in December 2003 by his sister and Gary Doyle, and to the fact that he was instructed to inspect the site and determine the level of development for the site. He says that having done so, he concluded that two houses could be put on the site and he had discussions about this with the Respondent and he understood that such a proposal would not meet with objection from the Council. It has to be the case that these discussions took place some considerable time prior to the contract for the purchase being signed on the 19th December 2003, because on that date all plans had already been prepared and the application was ready to be lodged with the Council on the same date as the contract was signed, as I have already mentioned. 

He says that he is very familiar with the statutory requirements relating to site notices and public notices, since his offices handles “five to six planning applications each week to various local authorities.” He says that prior to the lodgement of this application he caused a notice to be published in the Evening Herald (this appeared in the edition of that newspaper on the 19th December 2003). He then refers to the site notice which he says he prepared and which he personally erected on the site on the 19th December 2003. He then states that the application for permission was lodged also on the 19th December 2003. In relation to the site notice, he states as follows at paragraph 8 of his affidavit:

“………I say that I am absolutely certain that such notice was erected because I say that I was the person who erected it on the site in accordance with the regulations and I say that given that it was an application being lodged by my wife (sic) as co-owner of the lands I say that I was particularly scrupulous to ensure that all the requirements of the regulations were complied with.”

At paragraph 10 he states:

	“I say that during the course of the application I inspected the site at least twice a week to ensure that the site notice had been erected and was maintained in position. I say that on one occasion did I find (sic) that a Notice had been interfered with  and I say that I immediately replaced the notice with a new notice, r-erected it and I say that the site was kept under constant review not least because I was aware that I had a duty to do so but also because of the family connection with the development and I say that I am absolutely that the notice was erected prior to the lodging of the application and was maintained on the site during the period which the application was before the planning authority in accordance with the Planning and Development Regulations.”

He cannot understand how the applicants failed to see the notice which he erected.

He was cross-examined by Mr David Hardiman SC, on behalf of the applicants. In relation to the site notice he was asked about the lack of detail in his affidavit about the erection of this site notice, how it was constructed, where exactly and how it was placed in position. He stated that he had placed the notice itself in some laminate which he tacked to a piece of plywood, which in turn was nailed to a wooden post which he drove into the ground at the point marked on the site map. He drove this post into the raised clay mound which is in front of a hedge bordering the site. He also stated that about one week later, in fact on the morning of Christmas Eve, he spotted that the sign had been taken down and left lying in the ditch. He concluded that this had been done maliciously since he had driven the post into the ground very firmly with a lump hammer, and it could not have been down by accident. He re-erected the same notice, and not a new notice (as is incorrectly stated in his affidavit).

He was referred to the fact that when solicitors had replied to the applicants’ solicitor's letter, those solicitors had referred to the sign being down “on a couple of inspections” and that it had been erected again “each time”. Mr Dempsey said that he had told the solicitor that the sign had been down on one occasion. He also stated that it was a common enough occurrence in his experience that a site notice would be knocked down or might be blown down by wind. He had had three such instances himself in the previous three months. He stated that he took the notice down on the 18th February 2004 which he said was about three days after the 5 week period had expired. That however must be an error either in his evidence or in my notes, since the period of 5 weeks from the 19th December 2003 expires on the 23rd January 2004, and Mr Dunne from the Council inspected and found no notice on the 4th February 2004. Later he said that he had left the sign in place for about ten days longer than the required period to allow for the Christmas period.  However, nothing in particular turns on that since it is clear one way or the other that by the 4th February 2004 there was no site notice in situ.

Under cross-examination, Mr Dempsey stated that he would always be aware that some person from the Council would inspect a site after an application was lodged, and that the consequence for not having a site notice in place is that the application is returned as invalid. It would, therefore, be madness in his view, if he were not to have erected a site notice in this case and that he definitely did so. In his experience the Council nearly always carry pout an inspection and he would never take the chance that they might not. 

Evidence of Gary Doyle:

He states in his affidavit that he himself is a building contractor and that he is a co-owner of this site. He is building the houses in question. He refers in his affidavit to a conversation which he says took place at the site between himself and Mr Keogh on the 23rd March 2004. He says that Mr Keogh informed him that there was disquiet among the neighbours about the fact that permission had been granted for two houses. But in relation to the site notice he states that he inspected the site “on a number of occasions” and as often as once a week, and that on each occasion there was a site notice in place, and that there was no attempt to conceal it, and that he was well aware that the Council would be inspecting the site to ensure that such a notice was in place.

In cross-examination Mr Doyle stated that he called regularly to this site during the application period because he is in the habit of so doing in relation to all the sites where he would be building from time to time. He was not aware of the time the sign is said to have been down, and that he was just told about that by Mr Dempsey. He could not understand how it could be that the neighbours had not seen the notice. He had not made any contemporaneous notes or diary entries about his inspecting the site and observing the site notice in place.

The evidence of Mr Edward Doyle:

He is no relation of Mr Gary Doyle, and just happened to be an unsuccessful bidder for the site in December 2003. He had been interested in buying the site around September 2003, and had some discussion with the Keoghs in that regard. However in his affidavit he states that his father died in November 2003 and went to Sweden for his funeral. By the time he returned he discovered that the site had been sold and he was anxious to find out the identity of the purchaser, in case for any reason that purchaser might wish to sell it on to him. Both Mr Keogh and the auctioneer, Mr Nulty apparently disowned any knowledge of the identity of the successful purchaser, as it was bought in trust. He then goes on to state that as part of his effort to locate the identity of the purchaser he called almost every day to the site in the hope of meeting the new owner, and he says “it was on these occasions that I noticed that a new site notice had been erected.” He goes on to say that in April 2004 he was speaking with Mr Keogh who told him that there was some problem about the planning permission due to the absence of a site notice and that Mr Keogh asked Mr Doyle to swear an affidavit stating that he had not seen any notice at the site. However, Mr Doyle said he would not as he had seen the notice. He also states in his affidavit that he inspected the notice on the site “on a daily basis between the 18th December 2003 and 4th January 2004 or thereabouts.”

In cross-examination, this Mr Doyle stated that when he had come back from Sweden he had put in a sealed bid for this site on the 17th December 2003, but that in spite of  the fact that his bid was higher than the bid accepted by the Keoghs, his was not accepted. It was stated that this was because there may have been thought to be some uncertainty as to whether he had the funds to complete the purchase, but Mr Doyle said that he proved to the auctioneer that he had the money. He feels somewhat aggrieved about the fact that his bid was not accepted and suspects something underhand was going on. But in any event that is why he wanted to contact the successful bidder in order to see if he would sell on to him. He remembers looking at the site notice to try and find out who to contact. While he knew of David Dempsey he did not know the first named Notice Party whose name alone, he says, was on the site notice. 

Evidence of Mr Sean Byrne:

He is a planning technician with Arklow Town Council. In his affidavit he outlines the progress of this planning application from the time it was lodged on the 19th December 2003. He states that the application included a copy of the site notice, and he exhibits same. He says that this application was acknowledged to the applicant on the 23rd January 2004, and that he inspected the site on the 4th February 2004 “and observed that no site notice was in place.” He also states that on that date he completed what he describes as a “standard form for the planning file”. This is the form to which I have already referred, and which Mt Dunne states “was misinterpreted by the Town Engineer when he issued his report and recommendations to the Director of Services for decision who subsequently accepted the recommendation and approved the application.”

His affidavit goes on to deal with other matters such as the warning letter sent on the 25th March 2004 and the Enforcement Notice dated 20th May 2004. Finally he states that as of the date of swearing of his affidavit, namely the 7th July 2004, no final grant of planning permission has been issued. 

Under cross-examination by Mr Hardiman he stated that inspection of sites the subject of a planning application is on a random basis only, but that between 80%-90% of sites get inspected within the prescribed time. He works off a list of such sites. He inspected this site outside the 5 week period. He completed the “standard form” on the basis that the requirements had not been complied with as far as the notice was concerned, but that this form was misinterpreted by the Town Engineer. He stated that in a case where inspection occurs within the period and no site notice is found to be in place, his normal procedure is to go back to the planning file and try and ascertain if there is evident a reason for no site notice – for example the application might have been withdrawn. In the present case, there was no point in making any further enquiries about the matter, apart from looking at the  file,  as the inspection had taken place outside the time and at a time when there was no obligation to have a site notice in place. 

He also stated in cross-examination that once he has inspected all the sites on the list he gives all the standard forms in a bundle to the Town Engineer at the same time, and that the Town Engineer must then check through the forms in relation to the requirements as to the site notice, but that in the present case the form was misinterpreted by him. Mr Dunne conformed that when he found no site notice in  place he did not check with the developer as to whether there had been one in place during the requisite period. It was put to him that in these circumstances, in the absence of any enquiry at all, he could not have had any basis for believing that the requirements had been complied with. But Mr Dunne stated that there was nothing further he could have done since the time had expired. He stated that there would have been no point in going to the developer as he would simply have been told that there was such a notice in place. He would have no way of knowing whether he was being told the truth. He said that where the inspection had not taken place within the appropriate time, an assumption was made that there had been compliance, and no positive step was taken to establish the position in any way. It is assumed to have been done in the absence of evidence that it was not. He said that they did not have the necessary resources to ensure that such notices were in place on each of the days of the 5 week period during which the Regulations require the notice to be in place. He confirmed that the consequence of non-compliance is that the application is deemed to be invalid and the applicant must re-commence the application process.

The Regulations:

 The articles of the Regulations which are relevant to the present case are those set forth hereunder:

Article 17(1):

“An applicant shall within the period of two weeks before the making of a planning application –
(a)	give notice of the intention to make the application in a newspaper in accordance with article 18, and 
(b)	give notice of the intention to make the application by the erection or fixing of a site notice in accordance with article 19.”

Article 19(1):

“A site notice erected or fixed on any land or structure in accordance with article 17(1)(b) shall be –
(a) in the form set out at Form No.1 of Schedule 3 or a form substantially to the like effect,
(b)  subject to sub-article (4), inscribed or printed in indelible ink on a white background, affixed on rigid, durable material and secured against damage from bad weather and other causes, and 
(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or where there is more than one entrance from public roads, on or near all such entrances, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road, and shall not be obscured or concealed at any time.”

Article 19(3):

“Where a planning authority considers that the erection or fixing of a single site notice is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not adequately inform the public, the authority may require the applicant to erect or fix such further site notice or notices in such a manner and in such terms as it may specify and to submit to the authority such evidence as it may specify in relation to compliance with any such requirements.”

Article 20:

“In addition to the requirements of article 17(1)(b), a site notice shall be maintained in position on the land or structure concerned for a period of 5 weeks from date of receipt of the planning application by the planning authority and shall be renewed if it is removed or becomes defaced or illegible within that period.”

Article 26:

“(1) Subject to sub-article (3), on receipt of a planning application, a planning authority shall –
(a)	stamp each document with the date of its receipt, and
(b)	consider whether the applicant has complied with the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25.

(2)	Where a planning authority considers that a planning application complies with the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25, it shall send to the applicant an acknowledgement stating the date of receipt of the application as soon as may be after the receipt of the application.

(3)	Where, following consideration of an application under sub-article (1)(b), a planning authority considers that –

(a)	any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with, or
(b)	the notice in the newspaper or the site notice, because of its content or for any other reason, is misleading or inadequate for the information of the public,

   the planning application shall be invalid.

(4)	Where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met, the planning authority shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid.

(7)   Sub-articles (3) and (4) shall not apply where the planning authority is satisfied that the applicant complied with the provisions of articles 17, 18 and 19 but that any site notice erected by the applicant has been maliciously defaced or destroyed by any person other than the applicant.”

Legal submissions:

On behalf of the applicants, Mr Hardiman has referred to the provisions of Article 17(1)(b) and Article 20 of the Regulations, which, taken together, require that a site notice be erected or fixed at the site and that it be maintained in position for a period of five weeks from the date of receipt of the planning application, namely in this case the 19th December 2003. It is submitted that this Court cannot be satisfied in this respect having regard to the preponderance of the evidence from what I refer to collectively as the neighbours that they saw no such notice during the period, and that it would have been impossible for them not to see it if it was there. The applicants in this case, the Marshalls and some of these neighbours have said that if they had seen the notice at the site they would have availed of their right to lodge an objection to the erection of two houses on the site. Mr Hardiman has suggested that the evidence on the applicants’ side is as clear and positive a statement as to the non-existence of a site notice as it would be possible to muster. He refers in particular to the evidence of Mr McGuire whose entrance gate is directly opposite where the notice is said to have been erected and yet he says that he saw none. In relation to the evidence of Mr Dempsey that he himself erected the site notice, and re-erected it on one occasion when he found that it was down, Mr Hardiman seeks to cast doubt on this evidence when he states that it is of note that in his affidavit evidence there was a paucity of detail contained in the affidavit as to the manner in which the site notice was erected, and that the detail as to this was extracted only in cross-examination.

 He has also referred to a number of factual inaccuracies which emerged only in cross-examination – for example in paragraph 10 in relation to the placing of a new notice on the site; in paragraph 13 where it is suggested that before any work was commenced on the site, the planning conditions were complied with; and paragraph 15 where he stated that a commencement notice had been lodged with the planning authority before the commencement of work on the site. 

In so far as the Notice Parties suggest that they are hampered and prejudiced by construction being halted pending the determination of these proceedings, Mr Hardiman submits that they cannot do so, since work ceased following the service upon them of an Enforcement Notice by the planning authority, and also they in fact commenced construction of the houses before they had complied with planning conditions, before they had lodged any commencement notice, and even before the final grant of planning permission had been issued on foot of the Decision to Grant dated 18th February 2004. In all of these circumstances it is submitted that it is not open to the Notice Parties to assert prejudice, so as to assist them in their submission that the balance of convenience would be in favour of the Court not exercising its undoubted discretion to grant the reliefs sought by the applicants in these proceedings.

Mr Hardiman has referred to the provisions of Article 26 of the Regulations which impose certain obligations on the Respondent. He submits that the provisions of Article 26(4) of the Regulations are specific in so far as it is provided that “where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid”(my emphasis). He refers also to the fact that in sub-article (5) of Article 26 the foregoing shall not apply where the planning authority is satisfied that the absence of the site notice or the non-compliance with articles 17, 18 and 19 is due to same having been maliciously defaced or destroyed by some person other than the applicant. It is submitted therefore that there is a clear obligation upon the planning authority to inspect the site, at least on one occasion during the 5 week period, since if it does not do that, it is not in a position to comply with its obligation to consider that the requirements of article 17(1)(b) or under article 19 have been met in a particular case. It is submitted that in view of the fact that the consequence of non-compliance is that the planning application “shall be invalid”, it must follow that the obligation is an absolute one, and that it is not possible for the authority to inspect sites on a random basis, as happens according to the evidence of Mr Dunne, since some possibly invalid applications will inevitably be granted where site notices have either not been erected at all, or have not been maintained for the required period of time. In other words, if the authority does not inspect it is not in a position to “consider”.

Mr Hardiman suggests that to be required to inspect the site to ensure that at least a site notice is in place on the date of such inspection is not an onerous obligation, and must be complied with. He submits also that the facts of this case demonstrate very clearly why Article 26 of the Regulations is in place, and that it is the only protection which the citizen has against a possible abuse of the system.

In relation to the evidence given by Mr Edward Daly, the unsuccessful bidder for the site who says that he saw the notice in place, Mr Hardiman submits that this evidence is not sufficient to overwhelm the evidence of so many other persons who have stated that they saw no site notice, and that it cannot be evidence that the site notice was in place for a 5 week period from 19th December 2003.

Mr Patrick Butler SC for the respondent has said that there is purely factual matter to be decided by the Court. In that regard he says that Mr Hardiman never put it to Mr Edward Doyle that he might be mistaken about seeing the site notice around and after Christmas time, and that he must therefore accept his evidence, and that there is no reason why this Court should not believe him. He also suggests that the evidence which is contained in the affidavits and in the cross-examinations of the deponents shows that it was in fact the Keoghs who have instigated this objection to the planning decision, and that it is they who told the others about the lack of a site notice, and that the Keoghs are prevented by the terms of the Contract signed by them for the sale of the site from making objection to the application for permission. 

 It has also been submitted that the obligations imposed on the Respondent by Article 26 of the Regulations do not extend to inspecting the site to ensure that Article 19 is complied with, and that under the latter it is only ”when on inspection of the land………the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met” that the application is invalid. That, he submits, is not a positive obligation on the authority in all cases to so inspect.

On behalf of the Notice Parties, Mr Michael O’Donnell BL (led by Mr Colman Fitzgerald SC) adopted Mr Butler’s submissions and submitted also that the Respondent was under no statutory obligation to inspect a site to ensure that a site notice was in place, and that the extent of the obligation upon it was to ensure, as provided in Article 17 of the Regulations that any application received by the planning authority is accompanied by a copy of the newspaper notice, and a copy of the notice intended to be placed on the site to ensure that the contents of that notice complies with the requirements of Article 19. He submits that the authority can take it “on faith” that the site notice is going to be erected and maintained in position for the 5 week period. 

As far as the evidence given to the Court is concerned, Mr O’Donnell has submitted that the onus of proof in relation to the failure to comply with the requirements as to the site notice is on the applicants and that they have not discharged that onus given in particular the evidence of Mr Edward Doyle and also of Mr Dempsey. He makes the point that if Mr Doyle is correct that on a day around Christmas he saw the notice, then if the representative of the authority also happened to inspect the site on the same date and saw the notice it would be impossible to say that the site had not been inspected, and therefore even if the site notice was immediately thereafter taken down in breach of the Regulation it would be impossible to say that the permission which followed was invalid. He submitted that the obligation, if any, on the authority must be reasonably interpreted and the authority must carry out its obligations, such as they may be found to be, in a reasonable manner. He submits that it is an impossible obligation for the authority to fulfil if the obligation is to ensure by inspection that on each day of the 5 week period the site notice was properly in place at the site.

Mr O’Donnell accepted that it would have been preferable if the Notice Parties had not commenced the work at the site until all matters were properly in place, such as compliance with the financial conditions and the lodging of a commencement notice, but he submits that at the end of the day these are matters between the authority and the Notice Parties and can be of no avail to the applicants.

Conclusions:

As far as the evidence is concerned, the conflict which arises between that given by Mr Dempsey and by Mr Doyle on the one hand, and the applicants and the other witnesses called on their behalf, on the other as to the existence or non-existence of the site notice, is impossible to reconcile, and it is impossible therefore for the Court to determine that factual issue with absolute certainty. 

All the Court can do with certainty is state that it accepts completely the fact that even if the site notice was in place for the full five week period following the 19th December 2003, none of the persons who have given evidence saw it. I accept the sincerity with which they gave their evidence under cross-examination. A Court might endeavour to stretch to an inference that if, as it accepts to be the case, none of these persons saw the notice despite passing by it frequently on foot and being interested in such matters, then it must follow that while the notice may have been placed on a post and the post driven into the ground, it cannot have been in such a way or in a conspicuous position “so as to be easily visible and legible by persons using the road”, as is mandated by Article 19(1)(c)  of the Regulations.  

 Equally while I have some criticisms of the contents of Mr Dempsey’s affidavit which certainly has been shown to contain a number of factual inaccuracies, those can be explained in all probability by the haste with which these documents sometimes have to be prepared and signed. 

However, I would like to stress that the time constraints imposed on those involved in the legal processes cannot be an excuse or a reason for matters being deposed to on affidavit which on cross-examination have to be accepted as not quite accurate. An document which it is proposed to swear as an affidavit must be read and understood to be the complete truth by the proposed deponent prior to its swearing. A deponent must ensure that the contents of the document accurately reflect his/her instructions, since it is inevitable that in the drafting thereof by solicitor or counsel, some minor inaccuracies may occur, or even inaccuracies of a more serious nature, but falling short of any deliberate intention to mislead either the Court or the other side. I do not put what happened with regard to Mr Dempsey’s affidavit in the latter category at all, but it is useful to make the point that an affidavit is sworn evidence, just as if it were given viva voce in the witness box, and the importance of its accuracy cannot be over-stressed. 

It is difficult to disbelieve Mr Dempsey’s evidence. Despite certain weaknesses which emerged in cross-examination, and despite the lack of detail in his affidavit as to the precise manner in which he fixed the site notice to the post, and drove the post into the ground in front of the ditch, and so forth, I have no basis for supposing that he being untruthful when he says what he says. He is a professional man, familiar with the planning process and is aware of the severe consequences of a failure to comply with the requirements in relation, inter alia, to the site notice.

 It cannot be the case that he is being deliberately untruthful when he recounts his finding on one occasion that the post was down and re-erecting it immediately, because the consequences of swearing an untruth of such magnitude would be too awful to contemplate, and the Court would need very clear evidence of that before his sworn evidence could be disbelieved. Mr Edward Doyle has also sworn that the post was there on the occasions when he passed the site. Again, there is no suggestion that Mr Doyle has any reason to give untruthful evidence. In fact it could be said that if he has any axe to grind, he might grind it against the interests of the current development since he had wished to have his higher bid for the site accepted at the time of sale. 

It is impossible therefore, as I have said, to reconcile these two conflicting accounts. I therefore have decided to base my decision not on any acceptance or rejection of the evidence which I have heard, but on the basis of whether the process by which the Decision of the Respondent dated 18th February 2004 was arrived at in accordance with the statutory and regulatory framework. If it is not, then the Decision is one which lacks legality and must be quashed.

It is beyond any dispute that the planning authority did not during the 5 week period concerned carry out any inspection of the site which enabled them to be satisfied that the site notice was in place and that it conformed to the regulations. That fact is admitted. All we know is that on the 4th February 2004, some 12 days or so after the expiration of the 5 week period, the site notice was not in place, and that fact was reported to the appropriate officer within the Respondent, and that he or she misinterpreted the standard form and believed that the form showed that a site notice was in place when the inspection took place. That misinterpretation is also a matter not in dispute. 

Mr Dunne has stated that inspections are carried out on a random basis, but that between 80% and 90% of sites are in fact inspected. That means that 10% to 20% of sites do not get inspected and there is therefore a possibility, however long the odds, that the absence of any site notice will not be spotted before an application is granted. In those circumstances the persons whose interests are protected by the requirement to erect a site notice have received no protection at all. It is true that Article 17(1)(a) of the Regulations requires the insertion in a newspaper of an intention to apply for permission, but for that to be a failsafe method, or even a reasonable method of protecting the interests of persons likely to be affected. It would be necessary for citizens each day to purchase a copy of each newspaper in which such a notice might appear. It was presumably to give added protection to citizens likely to be affected by a planning permission, that the legislature introduced the additional safeguard of requiring a site notice to be put into position in a conspicuous manner at the proposed site. 

It follows that the requirement of having a site notice in place and in conformity with the Regulations is a very important requirement. The purpose which it serves is a vital one, if the intention of the legislature that each person likely to be affected by a planning decision shall have the right to lodge an objection and have their views heard before a planning decision is made, is to be achieved. The Regulations themselves, to which I have referred, reflect the importance which is attached to the right of such persons to be on notice of an intended application. Firstly in Article 17(1) there is the requirement upon the applicant for permission to give notice in the newspaper and by the erection of the site notice. These notices must conform to strictly defined specifications as to clarity, visibility and content, as provided in Article 18 in respect of the newspaper notice, and as provided in Article 19(a)(b) and (c) in respect of the site notice. Article 19(3) goes on to provide that where the authority considers that a single site notice at a site is insufficient or “does not adequately inform the public”, the authority may require further steps to be taken as set forth therein. Article 20 proceeds to state that the site notice must be in place and maintained for a period of 5 weeks from the date of the application. That is a lengthy period from which the importance attached to the site notice can be gleaned. 

Turning then to Article 26 it is apparent immediately that there are certain powers given to or duties imposed upon a planning authority in relation to applications made to it for planning permission. It sets out what shall happen on receipt of an application, such as sub-article (1) which provides that each document received will be stamped with the date of its receipt, and sub-article (2) which provides that the authority shall consider at that stage whether the applicant has complied with the requirements as to the content of the newspaper notice (Article 18) and whether the copy site notice submitted with the application conforms with Form No.1 of Schedule 3 of the Regulations (Article 19(1)(a) ), and whether the application documentation complies with Article 22, and possibly also Articles 24 or 25. 

Once the authority is satisfied that the documents comply with these requirements, it is mandated by Article 26(2) then to send a receipt of same to the applicant. Where on the other hand having so considered the documents, the authority considers that any of these requirements as to  the newspaper notice, the copy  of the site notice intended to be erected, or the documents generally do not comply, then it is provided that the application “shall be invalid”. 

Importantly for the present case, Article 26(4) then provides, as I have already set forth, that where on inspection of the land, the planning authority considers that the requirements of Article 17(1)(b) or 19 (the erection of an appropriate site notice, but not its maintenance for 5 weeks which is a requirement of Article 20), have not been complied with, the application “shall be invalid”, notwithstanding that it has been acknowledged pursuant to the provisions of sub-article (2) of Article 26. It is only where the authority is satisfied, as stated in sub-article (7) that the reason for the non-existence of the site notice on the date of inspection is due to malicious defacing or destruction that the provisions of Article 26(3) or (4) shall not apply.

I have set out these provisions in some detail again in order to highlight the care which has been taken to create a structured procedure for dealing with planning applications. Each step is clearly set out. It is clearly envisaged that the planning authority shall (not “may” or shall to the best of its ability” or “shall, as far as may be practicable”) on inspection of the land consider whether the requirements of the Regulations as far as the site notice is concerned have been complied with. The only matter left in some doubt is how the authority ought to ensure that the notice has been maintained in place for the five week period and not just for a period which happened to include the actual date of inspection. But in my view there is no room whatsoever to conclude that, because that matter is not clearly spelt out, there is no obligation as such to carry out an inspection at all within that five week period. The intention is clear from the wording of the Regulations themselves and the particular provisions to which I have referred. It is perhaps clearest in Article 26(4) of the Regulations. If no inspection is carried out within that five week period, and that is the admitted situation in this case, then the Decision subsequently contains a legal infirmity and must be quashed, since there has not been compliance with the provisions of s. 34(1) of the 2000 Act which provides:

“Where –
(a)	an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b)	all requirements of the regulations are complied with,

the authority may decide to grant the permission subject to or without conditions, or to refuse it.” (my emphasis)

In the instant case, “all requirements of the regulations” have not been complied with, and it follows that the interests intended and sought to be protected by the existence of these regulations have not been protected by the planning authority. The consequences of non-compliance with Article 26(4) are spelt out in that article – the application “shall be invalid”.

Since all the regulations were not complied with, this application for permission was invalid, and it follows therefore that the Respondent had no power to make the Decision to Grant Planning Permission dated the 18th February 2004, and I therefore grant the relief sought at paragraph (a) in the Statement of Grounds filed herein on the 28th April 2004.