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Cite as: [1996] IEHC 47, [1997] 2 IR 558

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Flynn and O'Flaherty Properties Ltd. v. Dublin Corporation [1996] IEHC 47; [1997] 2 IR 558 (19th December, 1996)

THE HIGH COURT

JUDICIAL REVIEW 1996 No. 51 J.R.

FLYNN AND O'FLAHERTY PROPERTIES LIMITED

APPLICANT

AND

THE LORD MAYOR ALDERMEN

AND BURGESSES OF THE CITY OF DUBLIN

RESPONDENT

Judgment of Mr. Justice Kelly delivered the 19th day of December, 1996.

BACKGROUND

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

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

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

THE APPLICATION

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

"Where -

(i) an application is made to a planning authority in accordance with permission regulations for permission under this section or for an approval required by such regulations,

(ii) any requirements relating to the application of or made under such regulations are complied with, and

(iii) the planning authority do not give notice to the applicant of their decision within the appropriate period,

a decision by the planning authority to grant the permission or approval shall be regarded as having been given on the last day of that period."

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

"(b) In paragraph (a) of this subsection the 'appropriate period' means -

(iii) "...within the period of two months beginning on the day of receipt, by the planning authority of the application."

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

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

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

"If, but only if, before the expiration of the appropriate period within the meaning of subsection (4)(a) of this section the applicant for a permission under this section gives to the planning authority in writing his consent to the extension by them of that period, the planning authority may extend the period and in case, pursuant to the foregoing, a planning authority make an extension, subsection (4)(b) of this section shall, as regards the particular case to which the extension relates, be construed and have effect in the accordance with the extension."

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

"We request on behalf of our client, an extension of time up to the [relevant date] for consideration of the above application."

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

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

"Dear Sir/Madam,

I am directed by the Assistant City Manager to inform you, that in accordance with Section 39(f) of The Local Government (Planning and Development) Act, 1976 amending Section 26(4) of The Local Government (Planning and Development) Act, 1963, the Planning Authority has extended until the 15/12/95 the period for making a decision on this application.

Signed [on behalf of the Corporation of Dublin]

Olive Flanagan, for Assistant City Manager

Date 23rd November, 1995."

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

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

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

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

THE GIVING OF NOTICE

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

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

In Freeney -v- Bray U.D.C. (1982) ILRM 29 O'Hanlon J. said that he was of opinion that there was an intention on the part of the legislature:-

"that planning applications were to be dealt with as matters of some urgency and that there was an obligation on the planning authorities to communicate their decisions to applicants within a strict limit of time; and further that it was intended that notice of decisions should reach applicants either personally or at their premises within the period described by the Act as 'the appropriate period.'"

18. He went on to say:-

"The interpretation Act, 1937, Section 18, is in ease of the sender of such statutory notice, since it raises a presumption in his favour that the notice has reached the applicant at the time when it would have been delivered to him in due course of post. The onus is thereby shifted to an applicant who asserts that the notice was not given by the planning authority within the statutory period, but if the service was by registered post and he can show that it did not, in fact, reach him within the 'appropriate period', then I am of opinion that the planning authority must suffer the consequences of resorting to this method of service rather than the more conclusive methods of personal service or service at the premises to which the application relates, or where the applicant resides, or at the address for service which he has given".

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

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

THE APPROPRIATE PERIOD

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

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

(a) it runs entirely counter to what the Respondent actually did in the present case,

(b) it necessarily involves an assertion that the Respondent acted ultra vires in granting the three further extensions, and

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

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

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

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

DISCRETIONARY RELIEF

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

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

"The purpose is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicate its decision within two months. One would expect the planning authority to be penalised for its failure, but it is the community that is penalised because a permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted. It would seem to be a relatively simple matter to devise some alternative sanction which would achieve the same desirable purpose of having planning applications expeditiously dealt with, but which would not have the same potentially serious consequence for the community in the event of a failure on the part of a planning authority through error or inadvertence to comply with the statutory time limit, and I would hope that the legislature might give serious consideration to this suggestion".

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

"It is with considerable regret that I have arrived at this decision as it means that the plaintiffs are obtaining a planning permission which the defendant, for a number of reasons, considered should be refused. It does not seem reasonable that failure to give notice of a decision within two months should result in the application being automatically granted, but such is the law and I have to apply it. It is only the legislature can change it and I am strongly of the opinion that they should consider doing so."

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

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

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

"It was never the intention of the legislature that the mistakes of planning or housing authorities, misconstructions of their powers, misconceptions of the facts or the like, would be used as a basis for the abandonment of the statutory procedures and the use of the courts as some form of licensing or enabling authority in a field in which the legislative and executive organs of government have prime responsibility. It is not the function of the judicial arm of government to aid an owner of property who, so to speak, is fortunate enough to have some innocent error made in determining his particular application, and to so aid him as to grant him in effect, .......a planning permission which it is the express decision of the relevant authority not to grant. The observations of Chief Justice and Mr. Justice Walsh in the Abenglen case are highly relevant in the present application. I am far from suggesting that there has been any improper conduct on the part of the plaintiff; she has merely sought to use what she believed to be a legal advantage that fell into her lap. In my view to permit such a use is not the function of the Courts ... In a case such as the present where no allegation of any impropriety, ulterior motive, or anything save mistake in law, is suggested, in my view, the necessity for the plaintiff to exhaust the statutory remedies is a complete answer to any claim to the discretionary assistance of the Courts ... There may be a variety of answers to her application for planning permission under Section 26 of the Act of 1963 or there may be very appropriate conditions to be attached to any such planning permission, and the interests of third parties are to be considered. This Court should unequivocally condemn attempts to side step the legislative and administrative procedures by recourse to the Courts. I would dismiss the appeal".

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

"I reject the submission that the court's discretion ought to be exercised against the plaintiffs on the ground of their having an alternative remedy in the form of a right of appeal. If the plaintiffs are correct in their contention there was no reason for them to appeal because under Section 26, subsection (4) the defendant was to be regarded as having granted to them on the

19th September, 1988, the permission sought. There was nothing to appeal against as they had a decision in their favour. The situation is very different from Creedon -v- Dublin Corporation [1983] I.L.R.M. 339 on which counsel for the defendant relied. In that case a decision refusing permission to use premises otherwise than for human habitation had been made and communicated to the plaintiff in an analogous procedure under the Housing Act, 1966, but the decision was made and communicated within the appropriate period so an appeal could have been brought against it in the normal course. Instead of bringing an appeal, the plaintiff claimed a declaration that the order refusing permission was a nullity. The Supreme Court, while finding that the order was invalid, refused to declare that permission had been acquired by default, holding that the necessity "to exhaust the statutory remedies" was "a complete answer to any claim to the discretionary assistance of the courts". In the present case, however, if the plaintiffs are correct there was no question of there ever having been any situation in which they needed to appeal. Once notice of the defendant's decision had not been given to them within the appropriate period, the defendant was to be regarded as having granted the permission on the last day of the period so there was no adverse decision against which to appeal".

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

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

CONCLUSION

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

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