Supreme Court allows default planning permission claim where development is open to consideration under Development Plan.

THE SUPREME COURT

Record No. 091/2008

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Between/

ABBEYDRIVE DEVELOPMENTS LIMITED

Applicant/Appellant

-and-

KILDARE COUNTY COUNCIL

Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2009.

1. The appellant applied for planning permission to build houses on a site in Ballymore Eustace, County Kildare in 2002.

The respondent, the planning authority for Co Kildare, made no

decision within the period of eight weeks permitted by section 34 of the Planning and Development Act, 2000. The

appellant claims to have acquired the right to a planning permission by default by

virtue of the provisions of sub-section 8 of that section.

2. The High Court (Murphy J) in a judgment of 29th November 2005 rejected the claim. He held that the application fell

into a category of development which was "open to consideration.”

In his view, it was a permission which, according to the terms of the Development Plan, would not normally be granted,

though the planning authority had power, in the exercise of its discretion, to

grant it. For that reason he held that a default permission could not arise. The central point in the appeal is whether that

decision was correct in law.

3. The appellant is a company engaged in the development of residential property. On 2nd December 2002, it applied to the

respondent for planning permission for a substantial residential

development at Ballymore Eustace. It had made earlier unsuccessful applications in respect of the same site. The application

was acknowledged by the planning authority as having been duly

received on 3rd December 2002.

4. The eight week period permitted for the making of a decision, unless a request was made for further information, expired

on 5th February 2003. The respondent on 6th February 2003

served a notice requiring further information, i.e., one day outside the permitted period.

5. The High Court decision and the dispute between the parties on the appeal turn on the fact that the proposed

development, though almost entirely residential, includes a very small

two-storey community facility comprising a crèche, neighbourhood shops, and a medical centre (with two apartments on the

second floor). This feature would represent approximately 0.2% of the

total floor area of the proposed development. The relevant zoning in the Kildare County Development Plan 1999 is R2 on

part of the site and R3 on another part of the site. Both types of zoning

are described as “solely residential.” R2 is a zoning for low density residential development and R3 is to provide for the

development of a rural community.

6. The significance of the inclusion of the community services is explained in an affidavit sworn by Mr. Pat Gallagher, the

Senior Planner with the planning authority. Mr Gallagher drew attention

to the part of the Development Plan dealing with the application of zoning objectives for the areas of Naas and Kilcock,

there being no corresponding zoning matrix applicable to Ballymore Eustace.

While Naas and Kilcock are not, of course, the area the subject of the development, Mr Gallagher argued that inferences

can be drawn from the zoning policy for Naas and Kilcock. He referred to

a table which draws a distinction between developments respectively described as “normally permitted,” “not normally

permitted but open for consideration” and “not permitted.” Mr

Gallagher proceeded to put forward the following contention, which is central to the appeal and which was accepted by the

learned High Court judge:

“The said matrix table indicates that the only development that is "normally permissible” on such a zoning is

residential development and other development such as a Medical/Consultant, Health Centre/Clinic, Retail

Outlet and Playschool/Crèche is "not permitted". I say and believe that the analysis of the policy in paragraph

3.5.3, while not directly applicable to the subject lands, gives a strong indication that the policy in the Kildare

County Development Plan 1999 is that the only development which is "normally permissible” on lands zoned

with a solely residential objective is low-density housing. In addition, I say and believe that the two-storey

community facilities building comprising a crèche, neighbourhood shop and a medical centre proposed by the

Applicant, is not development that would fall within the category of development that is "normally

permissible” with reference to the zoning of the subject site. However, given that the Kildare County

Development Plan 1999 acknowledges the need of services and facilities such as to facilitate the balanced

development of communities, I say and believe that the proposed two-storey community facilities building is

development that has sufficient merit to allow its consideration in the context of the overall proper planning

and development of the Ballymore Eustace Area.”

7. Solicitors for the appellant wrote to the planning authority on the 6th and 10th of March 2003 contending that a planning

permission should be regarded as having been given at the end of

the eight-week period. Having failed to persuade the respondent to that effect, the appellant, in May 2003, served a notice

of motion seeking leave to apply for judicial review principally by way of

a declaration that a decision to grant planning permission on foot of the application should be regarded as having been given

on 5th February 2003 and, if necessary, an order of mandamus.

8. An exchange of affidavits took place. The respondent opposed the application on two principal grounds: firstly, that the

application was one for a permission which, in the terms of the

Development Plan would not normally be granted; secondly, that the application did not comply with the requirements of

the relevant regulations.

9. It will be helpful, before turning to the High Court judgment, to set out the provision on which the application is based.

Section 34 (8) of the Planning and Development Act, 2000 provides:

(a) Subject to paragraphs (b), (c), (d) and (e), where—

(i) an application is made to a planning authority in accordance with the permission regulations for

permission under this section, and

(ii) any requirements of those regulations relating to the application are complied with,

a planning authority shall make its decision on the application within the period of 8 weeks beginning on the

date of receipt by the planning authority of the application.

(b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in

accordance with the permission regulations requiring the applicant to give to the authority further

information or to produce evidence in respect of the application, the authority shall make its decision on the

application within 4 weeks of the notice being complied with, provided that the total period is not less than 8

weeks.

(c) Where, in the case of an application accompanied by an environmental impact statement, a planning

authority serves a notice referred to in paragraph (b), the authority shall make its decision within 8 weeks of

the notice being complied with.

(d) [not relevant]

(e) [not relevant]

(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c),

(d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given

on the last day of that period.

10. The learned High Court judge examined the evidence exchanged in the affidavits at some length. He held that it was for

the applicant to show that "the application is consistent with the

development plan."

11. He then said:

“A distinction must be made between

(a) an application for a development which would contravene materially the Development Plan where there

can not be a default permission

(b) an application which could be considered by the authority, and

(c) an application which is within the Development Plan where default permission applies.

The issue for the court to decide is whether an application which falls into the middle category can be granted

by default.”

12. Although the matter was the subject of some debate at the hearing, it is clear from the foregoing passage and from other

parts of the judgment that the learned judge did not hold that the

development would, if permitted, amount to a material contravention of the Development Plan.

13. Having cited a number of authorities, in particular, the judgment of Barr J in McGovern v. Lord Mayor, Aldermen and

Burgesses of the City of Dublin [1999] 2 I.L.R.M. 314, he

returned to his classification of applications into three types, quoted at paragraph 11 above, and continued:

“While in the present case the respondent had, to the extent of seeking further information, applied its mind to

the application, they were out of time in seeking that information. They were entitled to consider whether the

application was one that was normally permitted or whether the application was open for consideration and,

if so, to decide that it was consistent with the proper planning and development of the area. The respondent

had not, however, considered whether it was consistent with proper planning.

The application was one which was proper to be considered. While neither of the two previous applications

granted by the respondent was found to be in material contravention of the development plan, this was a

separate application. An application which could be considered is one which is not within the development

plan. Accordingly, default permission cannot arise.”

14. This passage is the essential focus of the appeal. Before considering it, it is appropriate to refer briefly to the suggestion

made by the respondent that the conditions for a default permission

had not arisen by reason of irregularities on the part of the appellant in compliance with the requirements of the Planning

and Development Regulations, 2001. It is a strict statutory precondition to

the operation of the default provision of section 34(8) of the Act of 2000 that the application should have been made to the

planning authority in accordance with the permission regulations

(sub-paragraph (i))and that any requirements of those regulations relating to the application have been complied with (sub-

paragraph (ii)).

15. Henchy J dealt with the need to comply with regulations in the context of section 26 of the Local Government (Planning

and Development) Act, 1963, the statutory predecessor of section

34(8), in a well-known passage in his judgment in Monaghan U.D.C. v. Alf-A-Bet Promotions Limited [1980] I.L.R.M. 64

at 68/9. He there said:

“I ……feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as

necessary to be observed for the purpose of getting a development permission, which may affect radically the

rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance

with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In

such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations,

nominated as being obligatory may not be depreciated to the level of a mere direction except on the

application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be

prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary,

and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to

have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the

principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been

substantially, and therefore adequately, complied with.”

16. In the present case, the respondent planning authority has, at various times, referred to a number of aspects of alleged

non-compliancewith regulations in the application as lodged, namely:

· the site boundary was delineated in pink and not in red on the site layout plan;

· the plans and drawing did not indicate the name and address of the person by whom they were prepared: only the name

“SKH Horan and Associates” was provided;

· the north point was not indicated on the floor plans;

· as regards house types 7 to 11, the scale of drawings was indicated as being 1:100. However, side elevations would appear

to be drawn at a scale of 1:200 and there was no reference to

or indication of this difference in scale on the drawings;

· the site notice which was signed by a person acting on behalf of the applicant but the contact address of the person was

not inserted as required.

17. The learned High Court judge noted that the respondent agreed that the Regulations varied in strength and, according to

him, did not press the issue of non-compliance. He said that, while

he was not condoning non-compliance with the regulations, he did not believe that the non-compliance referred to

invalidated the application.

18. On the hearing of this appeal, counsel did not press the first or second matters listed above and accepted that any non-

compliance in the last respect had been cured and an amended site

notice placed for a sufficient period. It is fair to say that counsel did not press the remaining two points with any enthusiasm.

Insofar as he did, I am satisfied that the learned High Court judge was

quite right. I am far from saying that any significant non-compliance should be overlooked. It will be especially important to

give proper effect to the regulations, where the rights of potential

objectors may have been affected. The learned judge correctly noted the reluctance of the courts to enforce a grant of

permission by default. I fully endorse the remarks of Henchy J, quoted above.

However, the points of alleged non-compliance put forward in this case fall to be treated as de minimis. They are points

that would never be taken in the ordinary handling of planning applications.

It is reasonable to assume that they are being taken now only because of the admittedly undesirable and unfortunate fact

that a default permission may have to be granted.

19. It remains to consider the main point. Mr Michael Collins, Senior Counsel for the appellant submitted that the only

question should be whether the proposed development would, if carried

out, constitute a material contravention of the Development Plan. He submitted that the learned judge had never asked

himself that question. In fact, as I have said, I believe he did ask it and that he

answered it in the negative. Mr Collins said that the judge was in error in establishing three categories of application for the

purposes of application of this section. There should only, he said, be two.

They should be the first and third heading set out at paragraph 11 above. It is a question of vires. Did the planning authority

have the power to grant the permission? If they did, the failure to make a

decision within the permitted eight week period (or to extend it in one of the permitted ways) led to the result that a decision

should be regarded as having been made on the last permitted day.

20. Mr John Aylmer, Senior Counsel, for the Respondent submitted that the learned judge was correct. He relied on the

evidence of Mr Gallagher. The term "normally permissible" meant that

the application was open for consideration. The houses were to be in an area designated as "residential.” The inclusion of

community facilities meant that the development was one which could be

granted only following positive consideration and evaluation. He relied on the decision of Barr J in McGovern v Dublin

Corporation, cited above, in support of this proposition. Counsel accepted

that the planning authority had power to grant permission for the development, without following the "material-

contravention" procedure pursuant to section 34 of the Act.

Consideration and decision

21. Section 34 (8) constitutes an exception to the normal procedure leading to the grant of planning permission. It is capable

of leading to unsatisfactory results. Firstly, it may mean that the

planning authority is unable to obtain appropriate information about the development. Secondly, it may deprive the planning

authority of the opportunity to impose appropriate conditions on any

permission. Thirdly, it potentially makes it difficult for persons entitled to appeal to An Bord Pleanála pursuant to section 37

of the Act to know of the date of the deemed decision so as to be able to

exercise that right within the permitted period.

22. Nonetheless, it is a legislative provision to which, where its conditions have been satisfied, the courts have a duty to give

effect. The Oireachtas made a clear policy decision to retain this

provision in the new and comprehensive legislation of 2000, following a number of judicial remarks on the implications of

the former section of the Act of 1963.

23. In addition to the statutory precondition, to which I have already referred, namely that the applicant should have

complied strictly with all applicable regulations, it is fundamental to the very

notion of a default permission pursuant to section 34 (8) of the Act that any ensuing permission will not materially

contravene the Development Plan.

24. This follows from the wording of the section. A default permission will arise only when the planning authority “fails to

make a decision” within the permitted period. When the sub-section

then speaks of “a decision by the planning authority to grant the permission [being] regarded as having been given,” it is

axiomatic that the latter decision necessarily is one which the

authority would have had the power to make. Any contrary proposition would imply that the planning authority, by its

neglect, would enlarge its own decision-making power. Every planning

authority is under a duty imposed by section 15 of the Act of 2000 “to take such steps within its powers as may be

necessary for securing the objectives of the development plan,” and, in

considering an application for planning permission, is restricted to considering the planning and development of its area,

regard being had to the provisions of the development plan (section 34(2)(a)).

It follows that no decision could be regarded as having been made which would have involved the implementation of the

material-contravention procedure. The matter is well covered by authority: P

& F Sharpe Limited v Dublin City and County Manager [1989] I.R. 701, especially per Finlay C.J. at page 720; State

(Pine Valley Developments) Limited v Dublin County Council

[1984] I.R. 407.

25. In the present case, the learned High Court judge has taken a further step in deciding that there cannot be a decision by

default in less obvious cases. Those are cases where the

Development Plan provides a category of application which is "open for consideration."

26. The reasoning of the learned High Court judge closely followed the decision of Barr J in McGovern v. Lord Mayor,

Aldermen and Burgesses of the City of Dublin, cited above. In that

case, the Development Plan expressly provided for a category of development which it deemed to be "open for

consideration." In the view of Barr J, that necessarily entails "a positive

assessment by the planning authority of an application which is outside the normal confines of the development plan in

contrast to the granting of permission for a development which

is prima facie within the norm.”

27. It was suggested by counsel for the appellant in the present case that the McGovern case could be distinguished on the

basis that the development plan there expressly provided for a

category "open for consideration." I do not think such a distinction is viable. The respondent, using the evidence of Mr

Gallagher, relies on precisely such a category. It is unnecessary to decide,

for the purposes of this judgment, whether the Development Plan for Co Kildare, properly interpreted, included such a

category. It is sufficient that Mr Gallagher, who must be accepted, prima

facie, as having sufficient expertise to interpret the plan, is of the opinion that the development for which appellant seeks

permission is open for consideration. For the purposes of the present case, I

would accept the view of Mr Gallagher that the zoning matrix applicable to Naas and Kilcock would also be applied to

Ballymore Eustace. On that assumption, there is no meaningful distinction

between the express category of applications "open for consideration” in the Dublin Development Plan considered in

McGovern and the implied category advocated by the respondent in the

present case.

28. It seems to me, however, that the conclusive point is Mr Gallagher's acknowledgement “that the proposed two-storey

community facilities building is development that has sufficient

merit” to be considered. In other words, the respondents had the discretion and consequently the power, in the proper

application of the Development Plan, to decide to grant or refuse permission

for the development. It was not beyond its power to do so. In terms of section 34, it would have had power before 5th

February 2002 to make a decision to grant the permission.

29. Article 34 (8) provides for a decision in default following from the chance or accidental failure of the planning authority

to make a decision within or to secure an extension of the eight-week

period. For reasons already given, there could not be a deemed decision where no valid decision could have been made. It is

quite another matter to say that there cannot be a deemed decision

where a valid decision could have been made, although such a decision would involve an exercise of discretion in favour of

the applicant. I cannot see how the courts can impose any limitation on the

effect of article 34 (8) except on the basis of legal power. To do otherwise would have the inevitable effect of drawing the

courts into expressions of opinion on matters which properly fall within the

scope of the planning authorities. The present case is a good example. It is a matter of opinion, that is to say of proper

planning judgement, whether the inclusion of a very small area for community

services in a housing development should be considered as within or without the definition of residential zoning. That is a

matter for the planning authority or, on appeal, An Bórd Pleanála to decide.

30. In my view, Barr J was in error in McGovern, in establishing a new category of case, beyond cases of contravention of

the Development Plan or non-compliance with regulations, where a

default permission cannot arise. The entire matter was considered by Clarke J in the High Court in Maye v Sligo

Corporation (unreported 27th April 2007 [2007] IEHC 146.] Clarke J expressed

the matter well in the following passage:

“In my view it is not appropriate to extend the limitations on an entitlement to a default permission beyond

the material non-contravention circumstances identified in P&F Sharp. The position adopted in most of the

cases stems from the vires of the planning officials concerned to make a decision without reference to the

elected members of the planning authority (or formerly the Minister). The starting point has to be that the

2000 Act itself (which as I pointed out earlier in this judgment has been recently re-enacted by the Oireachtas)

places no limitation on the entitlement to a default permission by reference to the type of planning application

involved. It does require that the applicant has complied with the planning regulations. There is not even a

hint, however, in the legislation that the Oireachtas took the view that there should be any limitations by

reference to the type of application involved.”

31. He added at a later point:

“However to ask the courts to go further and form a generalised judgment about whether a particular planning

permission would ordinarily be allowed would be to involve the courts in exercising the type of planning

judgment which requires an expertise which the courts do not have and would involve the courts in a role not

contemplated by planning legislation. It seems to me, therefore, that if there are to be limitations beyond the

material contravention limitation then it is a matter for the Oireachtas to determine, as a matter of policy,

what those limitations should be. Clearly, despite the many comments made by courts as to the potential

unfairness of the default permission regime, the Oireachtas was not persuaded to introduce any such

limitations when revisiting the issue on the enactment of the Consolidation 2000 Act. The Oireachtas has,

therefore, in my view, at present set its face against such limitations. In those circumstances it would be

wrong of the courts to impose them.”

I would fully endorse those views.

32. All this should lead to the conclusion that the appellant is entitled to a declaration that a decision to grant the planning

permission has been made by default. However, the respondent has

invited the Court, in the event that it favours the case made by the appellant, to consider refusing the declaration in the

exercise of its discretion. The first reason for this is the failure of the appellant

to comply strictly with the planning regulations. I have already dealt with this point by saying that any non-compliance was

de minimis. Secondly, the respondent says that there has been very great

delay on the part of the appellant in prosecuting the appeal. It is true that the total period it has taken to process these

proceedings has been unacceptably long. This judgment is being delivered

some six years after the issue of the originating notice of motion. However, the only period relevant to the respondent’s

complaint is that related to the prosecution of the appeal. There was unusual

delay, some two years, in the perfection of the High Court Order. Nonetheless, the notice of appeal was served within the

period permitted by the Rules of the Superior Courts. It has not been

shown that the appellant is responsible for any of the delay. The appeal has been heard within approximately one year of the

service of notice of appeal. The respondent’s notice of motion seeking

to have the appeal dismissed was, in any event, served very late in the day. No ground has been shown which would

deprive the appellant of the order to which it would be entitled in the normal

way.

33. The notice of motion of May 2003 sought leave to apply for judicial review. That may have been based on a view that

this was required by section 50 of the Act of 2000, which mandates

that procedure where the validity of a decision of the planning authority is in question. However, throughout the proceedings

in the High Court (including the judgment of Murphy J) and in this Court,

the application has been treated as one seeking the substantive relief, rather than leave to apply for it. I am satisfied that the

appellant is entitled to succeed in its appeal and to an appropriate

declaration pursuant to section 34(8) of the Act of 2000. It is appropriate to hear counsel with regard to the form of order.