High Court of Ireland Decisions

1. On the 19th December, 1996 the first-named Notice Party, Cork County Council (the Council), decided to grant planning permission to the second-named Notice Party, Raymond Hennessy (Mr. Hennessy). The permission was in respect of a development consisting of a hostel and treatment plant together with an outfall to the sea situate at Ballylickey, Bantry, Co. Cork. The Applicant in these proceedings (Mr. Graves) together with a number of other individuals had objected to the permission sought by Mr. Hennessy.

2. On the 20th December, 1996 the Council informed Mr. Graves through his solicitor that it had decided to grant the permission in question subject to conditions.

3. Mr. Graves instructed his solicitors to appeal to the Respondent, An Bord Pleanala (the Board). It is common case that such an appeal had to be made within one month of the 19th December, 1996. Accordingly, the period for the making of such an appeal expired on the 18th January, 1997.

4. The 18th January, 1997 was a Saturday. Such being so, the provisions of Section 17 of the Local Government (Planning and Development) Act, 1992 applied to the period of time within which the appeal in question had to be made. I will consider the terms of this section in due course.

5. The appeal took the form of a letter dated the 14th January, 1997 written by Mr. Graves' solicitors. The letter was addressed to the Board and set out the basis upon which the appeal was being made.

6. On Saturday the 18th January, 1997, Mr. Graves' solicitor instructed a Mr. Martin Lynch to deliver this letter together with the sum of £100 in cash which was enclosed to the offices of the Board at Irish Life Centre, Lower Abbey Street, Dublin 1.

7. The Board's premises comprise portions of floors 3 and 4 of blocks 6 and 7 of the Irish Life Centre at Lower Abbey Street, Dublin. The Board's reception area is situate on floor 3 of block 6. The entire of the Board's premises is normally locked over the weekend and was so locked on Saturday the 18th January, 1997. No portion of it was open to the public on that date. Furthermore, there was no employee of the Board present on the Board's premises on the 18th January, 1997.

8. Mr. Lynch delivered the letter together with the fee enclosed to a security man who was on duty at the Irish Life Centre at 3 p.m. on Saturday the 18th January, 1997. Mr. Lynch was apparently informed by the security man that he (the security man) would furnish the letter to an employee of the Board on the morning of the 20th January, 1997. It is common case that the security man was not an employee of the Board.

9. Mr. William Colgan was a paper-keeper employed by the Board. He attended at the premises of the Board at Irish Life Centre on the following Monday morning, the 20th January, 1997. In the course of his employment at 8.20 a.m. on that day, he found an envelope which appeared to have been shoved under the door of the reception area of the Board's premises on the third floor. The envelope was not handed to or left with him and he did not know the exact time or date that it was shoved under the door. However, having found it he marked the envelope by writing on it "Found shoved under door to reception area, floor 3 at 0820 hours on 20/1/97" . He signed this notation with his initials. He immediately placed the envelope on the desk of the Board's receptionist. It is common case that this was the envelope which contained Mr. Graves' appeal and the £100 in cash.

10. Having left the envelope on the receptionist's desk, Mr. Colgan had no further dealings with the matter. It is quite clear from the evidence that at some stage during the 20th January, 1997 the envelope was opened by an official of the Board and the appeal was date-stamped as of that date. It is accepted by the Board for the purposes of this application that the taking possession of and the opening of the envelope together with the application of the date stamp to the contents was done by an employee of the Board during office hours on the 20th January, 1997.

11. On the afternoon of that day at 3.54 p.m. Mr. Graves' solicitor sent a further copy of his letter of appeal of the 14th January, 1997 to the Board by fax together with a covering fax transmission document and a covering letter. The covering letter was in the following terms:-

12. The Board contended that it had no record of receiving this fax. In support of this contention it exhibited an "activity report" from the Board's fax machine which purportedly recorded all of the faxes received by the Board from 11.10 a.m. on the 17th January, 1997 to 16.48 p.m. on the 20th January, 1997. It is correct to say that this activity report does not record the fax of the 20th January as having been received by the Board. Nonetheless, for reasons which I will come to in a moment, I am satisfied that the fax in question was received by the Board. No reply to it was forthcoming from the Board.

13. The reason why I am satisfied that the Board received this fax on the afternoon of the 20th January is because on the 29th January, 1997 Mr. Graves' solicitors received a letter from the Board returning the original Notice of Appeal together with the copy of it sent by fax on the afternoon of the 20th and the covering letter and the fax transmission cover sheet, all of which bore the date stamp of the Board of the 20th January, 1997. The letter from the Board which accompanied all those documents was in the following terms:-

14. A cheque for £100 was enclosed.

15. It is in respect of this refusal by the Board to accept his appeal that Mr. Graves seeks this Judicial Review. He was given leave to make such application by Shanley J. on the 7th April, 1997. The relief sought is an Order of Certiorari to quash the decision of the Board communicated to the Applicant by the letter of the 29th January, 1997 whereby it determined that the appeal was invalid.

16. In essence he says that having regard to the factual position which I have already outlined, he complied with all of the necessary statutory provisions and in taking the view of the matter which it did the Board misdirected itself at law. He furthermore alleges that by reason of the Board's failure to respond to his fax message of the afternoon of the 20th January, 1997, it is estopped from now contending that the appeal is invalid. In order to understand these submissions it is necessary that I now set forth the relevant statutory provisions.

17. The period of one month for the making of an appeal is prescribed under Section 26(5) of the 1963 Local Government (Planning and Development) Act, as amended.

18. It is pertinent to point out that there is no statutory definition of the phrase "office hours" as used in Section 4 of the Act. However, the Board has set the hours as being between 9.15 a.m. and 5.30 p.m. from Monday to Friday excluding public holidays and Good Friday. Notice to that effect was published in the national newspapers in July of 1992 and notices to that effect are situate in the entrance lobby and lift of the building in which the Board's premises are situated. In addition the Department of the Environment has published a leaflet entitled "Making a Planning Appeal" in which those hours are clearly set out at paragraph 3 thereof. A copy of that leaflet containing, inter alia, this information was furnished to Mr. Graves' solicitor by the Council as part of the documents sent along with the decision against which Mr. Graves wished to appeal.

19. Mr. Graves accepts that in order to make a valid appeal to the Board there must be compliance with the provisions of Section 4 of the Act. The only part of that section with which this application is concerned is Section 4(5)(b). That is because Mr. Graves chose to make his appeal to the Board by the method there prescribed. He did not seek to make his appeal by post nor by any other means prescribed. It is accepted that in purporting to comply with the provisions of Section 4(5)(b) neither Mr. Graves nor his agents left the appeal with an employee of the Board at the offices of the Board. But he says the statute does not require that an appellant or an appellant's agent should do so. He argues that once somebody leaves an appeal with an employee of the Board at the Board's offices during office hours, the statutory provisions have been complied with. In the present case it is conceded by the Board that one of its employees came into possession of the appeal on Monday the 20th January at the Board's offices during office hours. Because of the existence of Section 17(1)(b) of the Act, Monday the 20th being the next following day on which the offices of the Board were open, this rendered valid the appeal. Mr. Graves' Counsel accepts that the modus operandi adopted in this case was fraught with danger and were it not for the concession made by the Board concerning receipt of the appeal on Monday the 20th January, 1997 he would be unable to press this aspect of his case.

20. Counsel for the Board, on the other hand, whilst making the concession in question, says that it is of no assistance to Mr. Graves. He says that the appeal procedure which is prescribed under Section 4 must be complied with strictly. This is so, inter alia, because of the rights of third parties which may be affected by the bringing of an appeal and the necessity to have certainty in relation to the matter. In the present case Mr. Graves accepts that he cannot prove that the appeal in question was left with an employee of the Board at the offices of the Board. In fact the contrary is the case. The appeal was left with somebody who was not an employee. Such being so, the appeal was not validly made.

21. I have come to the conclusion that the submissions of the Board in this regard are correct. The wording of Section 4(5) of the Act is in mandatory terms. It requires that an appeal be left with an employee of the Board at the offices of the Board. It appears to me that an appellant who wishes to argue that he has made a valid appeal would have to be able to demonstrate compliance with the statutory provisions. Mr. Graves does not have the ability to so argue in the present case. By a mix of good fortune and a concession made by the Board, he has been able to demonstrate that his appeal came into the possession of an employee of the Board during office hours on Monday the 20th January, 1997. But he cannot prove that the appeal was left with an employee of the Board at the offices of the Board on the day in question. The fact that an employee of the Board came into possession of the documents on the 20th January, 1997 does not appear to me to discharge the obligation of the appellant to demonstrate compliance with the mandatory requirements of Section 4(5)(b). It seems to me that the legislature in enacting Section 4(5)(b) prescribed very carefully the procedure which has to be followed in order to make a valid appeal. The legislature did not content itself with permitting an appeal to be simply left at the offices of the Board. Rather it required that the appeal be left with an employee of the Board. An employee of the Board must have the appeal document left with him or her personally in order for the appeal to be valid. The mere fact that such an employee fortuitously comes into possession of appeal documents does not, in my view, discharge the onus cast upon an appellant who wishes to make a valid appeal if such appellant chooses the method of service prescribed under Section 4(5)(b) of the Act. To permit of a departure from that procedure would not merely run counter to the statutory provisions but would, in my view, introduce an element of uncertainty into a procedure which must be construed strictly and rigidly so as to ensure certainty and the protection of third party rights. Accordingly, I reject this first submission made on behalf of Mr. Graves.

22. This submission concerns the construction to be give to Section 17(1)(b) of the Act. Counsel for Mr. Graves says that the plain wording of this section means that if the final day for the making of a valid appeal happens to be a Saturday, a Sunday, a public holiday or any other day on which the offices of the Board are closed, then an appeal is to be regarded as valid if received by the Board on the next following day on which the offices of the Board are open. He says that in the present case there can be no doubt but that the appeal was received by the Board on Monday the 20th January, 1997. That is undoubtedly the case. He says, therefore, that there was compliance with the provisions of Section 17(1)(b) of the Act and therefore his appeal is valid.

23. Whilst this submission has an initial attraction about it, it does not stand up to close examination. If it were correct it would mean that an appellant whose last day for making an appeal happened to be one on which the Board's offices were not open would have an advantage over an appellant who was not so favoured. The former would merely have to demonstrate receipt by the Board whilst the latter would have to prove compliance with the provisions of Section 4(5)(b). Not only that, but because Section 17(1)(b) does not contain any stipulation concerning the time at which receipt of the appeal documents must occur, the receipt could take place at any time up to midnight on such a day.

24. I do not accept that this is the proper construction of Section 17(1)(b). First, I am of opinion that the procedure which must be followed in order to make a valid appeal is that which is prescribed in Section 4 of the Act. Section 17(1)(b) does not in any way modify that procedure. It merely extends the period in which that procedure can be complied with. Secondly, I am fortified in this view by the very wording of Section 17(1)(b) itself. It makes it clear that the saver which is provided there only has the effect of rendering valid "as having been made in time" an appeal which would otherwise be invalid because of the expiry of the one month time limit on a day on which the offices of the Board were closed. Section 17(1)(b) does not purport to validate any other element of an appeal. Therefore a failure to comply with the mandatory provisions of Section 4 cannot be cured by reliance on Section 17(1)(b). The only issue that is addressed by Section 17(1)(b) is that of time.

25. Thirdly, in my view the construction which is sought to be placed upon the wording of Section 17(1)(b) would give rise to a manifestly absurd and unjust result which could not have been the intention of the legislature. By the expiration of the time limited for appeal occurring on a day on which the offices of the Board were closed, an appellant would be relieved of compliance with the requirements of Section 4 and would be permitted to make a valid appeal at any time on the next following day on which the offices of the Board were open. He could therefore do so up to midnight on such a day. This, in my view, would place him at a considerable advantage over an appellant whose time limit for appeal did not occur on one of the days on which the offices of the Board were closed. Not only that, but it would give rise to the sort of uncertainty which the provisions of Section 4 are designed to obviate. Indeed, it could even give rise to abuse for who is to say whether a document was left at the offices of the Board at a minute to or a minute past midnight on the relevant date?

26. Accordingly, in my view, this argument also fails.

27. The final submission which is made is that by reason of the Board's failure to reply to the fax which was sent to it on the afternoon of the 20th January, 1997, it is now estopped from denying the validity of the appeal. It is said that had Mr. Graves' solicitors been informed that the Board was not going to treat the appeal as a valid one, he would have taken further steps to ensure that the letter of appeal together with the appropriate fee would be resubmitted to the Board prior to closing time on the 20th January, 1997.

28. I do not accept that the Board was under any obligation to respond to the fax which it received on the 20th January, 1997 prior to closing time on that date. The fax was sent shortly before 4 p.m. on that date thereby leaving the Board with a period of about ninety minutes in which to respond. I do not think that that was reasonable in the circumstances. Even if it was, I am of opinion that the failure on the part of the Board to make its views known to Mr. Graves' solicitors prior to closing time on the 20th January, 1997 did not give rise to an estoppel preventing it from now denying the validity of the appeal.

29. For the reasons which I have already set forth, I refuse the reliefs which are claimed.

30. In my view the Board was not wrong in law in rejecting Mr. Graves' appeal.

31. This application is dismissed.