High Court of Ireland Decisions

1. On the 23rd June, 1998 the applicant applied to the Respondent for planning permission for the erection of a bungalow and garage on the site. However the site notice erected by the applicant was not considered sufficient by the Respondent and by registered letter dated 14th August, 1998 the Respondent requested the applicant to erect a new notice the same to be maintained on site for a period of one month from the date of written notification to the Respondent that the notice is in place. By letter dated 17th August, 1998 received by the Respondent on the 18th August, 1998 the applicant gave written notification to the Respondent that the new notice had been erected on the 17th August, 1998.

2. The Respondent issued a request for additional information pursuant to Article 33(3) of the Local Government (Planning and Development) Regulations 1994 to the applicant by registered letter dated 16th October, 1998. The letter was in fact posted on the 19th October, 1998 and received by the applicant on the 20th October, 1998. It is common case that the request for further information was not given within a period of two months commencing on the 18th August, 1998 and that the Respondent did not give notice to the applicant of their decision within the appropriate period pursuant to Section 27(3) of the Local Government (Planning and Development) Act 1963 that is within the period of two months beginning on the day of the receipt by the Respondent of the applicant’s letter dated 18th August, 1998.

3. The Local Government (Planning and Development) Regulations 1994 Regulation 18(1) requires that a planning application shall state the name and address and telephone number if any of the applicant and the address to which any correspondence relating to the application shall be sent. The applicant completed a planning application form issued by the Respondent and in response to question six therein gave the name and address to which notification should be sent as Pat Walsh, Ballinagappa, Clane, County Kildare and in response to question 26 therein gave the name and address and telephone number of the applicant as Patrick Walsh, Ballinagappa, Clane, County Kildare 045 861077. The address given is in a rural area and is that of Bernadette Doran and her husband Thomas Doran with whom the applicant had been living since 1993. The registered letter dated 14th August, 1998 hereinbefore referred to is addressed by the Respondent to the applicant in the following terms -

4. It was sent by registered post and was received by the applicant. A further registered letter dated 16th October, 1998 similarly addressed was posted by the Respondent on the 19th October, 1998 and received by the applicant on the 20th October, 1998.

5. On the 16th October, 1998 John C. Byrne an Official of the Respondent endeavoured to deliver the letter dated 16th October, 1998 personally to the applicant or by leaving it at the address given either of which methods constitutes the giving of notice pursuant to the Local Government (Planning and Development) Act 1963 Section 7(1) (a) and (b). He did not succeed in finding the applicant’s residence. He made a further unsuccessful attempt on the 17th October, 1998. Ballinagappa is a townland in the vicinity of Clane and he made general enquiries in Ballinagappa but was unable to ascertain the location of the applicant’s residence. He enquired from a Mr. Reilly of Ballinagappa Cross, an elderly resident of the area, but he was unable to assist as to the location of the applicant’s residence. He called to other houses in the area for assistance without success. He returned to the Respondent’s offices in Naas to check the Respondent’s file to see if it contained any information which would assist him in identifying the location of the applicant’s residence but without success. It was in these circumstances that he failed to effect service on either the 16th or 17th October, 1998. In support of the application for planning permission Emmett Stagg T.D. wrote to the Respondent on the 23rd June, 1998 and his letter was on the Respondent’s planning file. The letter was headed with the applicant’s name and address as set out above and contained the following paragraph -

6. Mr. Bryne did not avert to this information or did not attach significance to it.

7. In these proceedings the applicant claims a declaration that in the circumstances aforesaid he is entitled to a default permission pursuant to the provisions of the Local Government (Planning and Development) Act 1963 Section 27(3) (a). The Respondent relies upon the following grounds of Opposition -

8. In the premises the Respondents submits that the applicant ought to be refused the discretionary relief sought from this Honourable Court.

9. The Local Government (Planning and Development) Act 1963 in relation to service of notices provides in Section 7 thereof as follows -

10. The Local Government (Planning and Development) Regulations 1994 Regulation 18 provides for the contents of planning applications. Regulation 18(1) provides inter alia as follows -

11. The applicant in the form of application gave his name and address and telephone number as applicant and gave his name and address as the name and address as those to which notification should be sent. The name and address was clearly sufficient had the Respondent opted to send the request for additional information by registered post as the two registered letters which the applicant sent to the Respondent dated the 14th August, 1998 and 16th October, 1998 were duly received. However the intention of the 1963 Act Section 7(1) is that the planning authority should have a choice as to the manner in which it will give notice and the purpose of the Local Government (Planning and Development) Regulations 1994 Regulation 18(1) is to enable the planning authority to give notice in whichever manner set out in the 1963 Act Section 7(1) it should choose. If the address given by an applicant for planning permission is inadequate to afford the planning authority a choice of the full range of options for giving notice then notwithstanding that the applicant acted in good faith the application is bad. I have no doubt that the Applicant acted in good faith equally I am satisfied that the Respondent’s servant Mr. Byrne acted in good faith and made all reasonable efforts to find the applicant’s residence but was unsuccessful in so doing. Had the Applicant adopted the simple device of giving his address as care of either Bernadette Doran or Thomas Doran Mr Byrne would have located the address given by the applicant without undue difficulty.

12. The lands the subject matter of the application were part of Castletown Estate in Celbridge, County Kildare. On behalf of the Plaintiff the local doctor in Leixlip, the local Postman in Leixlip and a resident of Leixlip gave evidence that they would have known where Leixlip Gate was without any further description. The application itself referred to the lands as at Leixlip Gate, Celbridge, County Kildare and the lands were situtate in the townland of Kilmacraddock Upper. The Supreme Court held that the notice was insufficient although it would have been sufficient if either a reference to Castletown Estate or Celbridge or Kilmacraddock Upper had been included. Griffin J. in his Judgment said -

13. The same logic must apply to the requirement of the Local Government (Planning and Development) Regulations 1994 Regulation 18(1) - the address given must be sufficient reasonably to enable the planning authority to give notice in each manner authorised by the 1963 Act Section 7(1) thereof. Having regard to the circumstance that the address given is for a dwelling situate in a rural area and the fact that notwithstanding reasonable efforts on his part Mr. Byrne was unable to effect delivery of the notice I hold that the address given by the applicant in his application for planning permission was inadequate and accordingly that his application for planning permission was bad. Upon this basis the applicant is not entitled to the declaration which he seeks.

14. The Respondent in addition claims that the development would represent a material contravention of its Development Plan and refers to a number of provisions therein as follows -

15. The Respondents submission is that where the grant of planning permission on foot of an application would involve a clear material contravention of the development plan the applicant for the same could not obtain a valid planning permission and equally could not obtain a valid default permission: Calor Teoranta-v-The Council of the County of Sligo (1991) 2.I.R.267. I accept this as a correct statement of the law. The Respondent further submits that having regard to the provisions of the development plan at 3.8.3 and 3.8.4 to grant permission on foot of the applicant’s application for planning permission would involve a material breach of the development plan. Insofar as paragraph 3.8.3 is concerned having regard to the wording of the same the Council retains a discretion to grant planning permission for housing notwithstanding that the same is contrary to public health requirements. However it is clear that the applicant could not comply with the mandatory requirements in relation to septic tank and percolation area in that the severance of the site from the retained lands would result in the retained lands being in breach of the development plan the septic tank and percolation area serving the same being within 60 feet of the applicant’s proposed dwelling. In these circumstances I hold that the grant of planning permission on foot of the applicant’s application for planning permission would have involved a material breach of the development plan. Accordingly the applicant is not entitled to a default permission.

16. In so finding I am mindful of the contents of the Affidavit of Aidan Dempsey sworn on behalf of the applicant that the requirements of the development plan as to septic tanks do not prohibit or indeed affect the discretion of the Respondent to grant planning permission where effluent disposal is by way of an effluent treatment system and that such a system was approved for the retained site by planning permission reference 99/990. However the relevant date is the 18th August, 1998 which pre.dates that permission and at that date the retained lands were serviced by the non complying septic tank.

17. Having regard to the foregoing findings the applicant is not entitled to the relief which he seeks.