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Cite as: [2004] IEHC 327

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THE HIGH COURT

[2004]IRLHC 327

JUDICIAL REVIEW

[2001 No. 711 JR]

BETWEEN

ILLIUM PROPERTIES LIMITED

APPLICANT

AND

THE LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN NOW THE DUBLIN CITY COUNCIL

RESPONDENT

JUDGMENT of the Honourable Mr. Justice O'Leary dated 15^th October, 2004.

The Applicant by way of Judicial Review applied on 26^th October, 2001 for an order in the following terms:

1. An Order of Certiorari quashing the decision of the Respondent to request further information by letter dated the 10^th day of September, 2001.

2. A Declaration that the application for planning permission Register Reference No. 2105/01 is deemed granted planning permission by operation of law pursuant to Section 26 of the Local Government (Planning & Development) Act, 1963, as amended.

3. A Declaration that the letter dated the 10^th day of September, 2001 on planning application Register Reference No. 2105/01 was not such as to amount to a bona fide request for further information pursuant to the Local Government (Planning and Development) Acts, 1963-1999.

4. Interim and/or interlocutory relief.

5. Further and other relief.

6. The costs of this application.

The application was based on the following grounds:

That the Notice dated the 10^th day of September, 2001 on planning application Register Reference No. 2105/01 did not amount to a valid request for further information pursuant to the Local Government (Planning and Development) Acts, 1963-1999.

The Notice dated the 10^th day of September, 2001 could not amount to a valid request for further information in circumstances where the matters disclosed in that letter already matters which the local authority had in its possession and/or which were matters not related to the nature and extent of the proposal submitted for their determination pursuant to planning application Register Reference No. 2105/01.

The aforesaid Notice dated the 10^th day of September, 2001 does not comply with the requirements of Article 33 of S.I. 86 of 1994 and is not such as to extend the period within which the local authority can determine the application and avoid a permission being deemed granted within the aforesaid appropriate period.

The aforesaid Notice dated the 10^th day of September, 2001 was merely a device employed by the Respondent in order to extend the appropriate period and avoid complying with the statutory obligations to give a decision within two months of the date of the receipt of an application as is required by Section 26(4) of the Local Government (Planning and Development) Act, 1963.

The planning authority, having received a valid application, are in the circumstances required to give notice of their decision within the two month period and cannot rely on the Notice dated the 10^th day of September, 2001 in those circumstances. Accordingly, a decision to grant planning permission in accordance with the plans and documentation submitted is deemed to have been granted on the last day of the appropriate period.

Having regard to the statutory scheme as enshrined in the Local Government (Planning and Development) Acts, 1963-1999, and in particular the mandatory requirements contained in Section 26(4) of the 1963 Local Government (Planning and Development) Act, 1963, the local authority have a duty only to issue bona fide requests for additional information and not use that procedure to extend the appropriate period which is, if that is the intention, an abuse of the statutory powers conferred on them.

The decision of the Respondent to issue such a Notice and regard to its contents is unreasonable and contrary to plain reason and common sense.

Mr Justice Kelly granted leave to apply for Judicial Review on the above terms and on the grounds set out above on 26^th October, 2001.

The Respondent filed a statement of Opposition dated 30^th November, 2001 in the following terms:

1. By way of preliminary objection, the Applicant is precluded and/or estopped from seeking the reliefs sought by its own acts and/or omissions and/or in circumstances where the Respondent notified the Applicant that a decision had been made on the application in Planning Register Reference No. 2105/01 on the 6^th day of November, 2001.

Without prejudice to and/or in addition to the aforementioned preliminary objection the Respondent opposes the Applicant's application for judicial review as follows:-

2. The Applicant is not entitled to the reliefs claimed and/or to any relief by way of an application for Judicial Review.

3. The Applicant has failed to state any grounds which would entitle it to the discretionary sought and/or to any relief by way of an application for judicial review.

4. It is denied that the notice dated the 10^th day of September, 2001 in Planning Register Reference No. 2105/01 did not amount on a valid request for further information pursuant to the Local Government (Planning and Development) Acts, 1963-1000 as alleged.

5. It is denied that the notice dated the 10^th day of September, 2001 could not amount to a valid request for further information in circumstances where it is alleged that the matters disclosed in that letter were already matters which the related to the nature and extent of the proposals submitted for their determination pursuant to Planning Application Register Reference No. 2105/01 as alleged.

6. It is denied that the aforesaid Notice dated the 10^th September, 2001 does not comply with the requirements of Article 33 of S.I. 86 of 1994 and is not such as to extend the period within which the Local Authority and/or the Respondent the application and avoid a permission being deemed granted within the aforesaid appropriate period as alleged.

7. It is denied that the aforesaid Notice dated the 10^th September, 2001 was merely a device as alleged employed by the Respondent in order to extend the appropriate period and avoid complying with the statutory obligations to give a decision within two months of the date of the receipt of an application as is required by Section 26(4) of the Local Government (Planning and Development) Act, 1963 as alleged.

8. It is denied that the Planning Authority and/or the Respondent having received a valid application are, in the circumstances, required to give notice of the decision within the two months period and cannot rely on the Notice dated the 10^th September, 2001 in the circumstances alleged. The Respondent upon receipt of a planning application, may be notice in writing require the Applicant to submit any further information (including any plans maps or drawings or any information as to nay estate or interest in or right over land) which it considers necessary to enable it to deal with the application any may further require the Applicant to produce any evidence which it may reasonably require the Applicant to submit any further information (including any plans, maps or drawings or any information as to any estate or interest in or right over land) which it considers necessary to enable it do deal with the application and may further require the Applicant to produce any evidence which it may reasonably require to verify any particulars or information give in or in relation to the application. It is therefore denied that a decision to grant planning permission in accordance with the plans and documentation submitted is deemed to have been granted on the last day of the appropriate period as alleged.

9. To the extent that the Applicant is alleging that the request for further information was not bona fide, the said allegation is strenuously denied. It is denied that the Respondent used the procedure requesting additional information to extend the appropriate period and/or that it abused its statutory powers in any way and in this regard the contents of paragraph 6 of the Statement of Grounds are denied as if the same were herein set forth and traversed seriatim.

10. It is denied that the decision of the Respondent to issue a Notice for Further Information and/or the contents of the said Notice are unreasonable and contrary to plain reason and common sense as alleged.

11. Such further and other grounds as may be allowed by this Honourable Court.

The following evidence was before the Court in relation to the action:

1. Affidavit of Dermot Desmond (a principal of the Applicant company) dated 23^rd October, 2001 on behalf of the Applicant

2. Affidavit of Norman Boyle Senior Planning Officer of and on behalf of the Respondent dated 30^th November, 2001

3. Affidavit of Nicola Matthews Conservation Officer of and on behalf of the Respondent dated 30^th November, 2001

4. Supplemental Affidavit of Dermot Desmond dated 21^st December, 2001

5. Supplemental Affidavit of Nicola Matthews (otherwise Nicki Matthews) dated 21^st February, 2002.

6. Second supplemental Affidavit of Dermot Desmond dated 15^th July, 2002.

7. Additional documents introduced by the respondent (including a request from Norman Boyd planning officer to Dublin Planning Officer dated 10^th September 2001).

There were also discovery motions and motions to cross-examine those who swore the affidavits. The discovery motions did not disclose any additional material relevant to the issues before the Court and the cross-examinations did not take place.

Background Facts and Basic Conclusions

The following facts were admitted and or proved to the satisfaction of the Court and arising there from the Court reached some basic conclusions as follows:

1. The applicant is the owner of the property known 71 Merrion Square Dublin (hereinafter 'the property') for the purpose of the relevant planning application.

2. The property is within functional area of the respondent planning authority

3. Under the provisions of Dublin City Development Plan 1999 the property is zoned Z8 which has as its objective 'To protect the existing architectural and civic design character, to allow only for limited expansion consistent with the design objective. To allow primarily residential and compatible office and institutional uses.' The property and the surrounding area are designated as a Conservation Area under the plan.

4. The applicant is engaged in a development of the property which in general appears to be compatible with the planning objective of the planning authority. Comment: The foregoing statement is no guarantee that differences will not arise within the development process. Buildings develop over the years and this property is no exception. Restoration of an old property can mean different things to different people e.g. is property to be restored to its original condition or is the point of reference to be a different time, within the 200 year period since it was built. The base year for the 'restoration' is a matter of opinion. This appears to be the source of much of the disagreement between the parties.

5. There are other proceedings in being between the parties. These issues are referred to (and take up much space) in the affidavits in these proceedings. The other proceedings have limited relevance to the issues at stake herein.

6. In pursuance of the objective of the applicant to restore the house to residential use (including the demolition of a 1960's extension) a planning application was submitted on 29^th November, 2000. Included in this application were two windows in that wall to which the 1960's extension was attached.

7. This application (3824/00) (herein after called the '2000 application') was due for decision after the statutory two months but the progress of the application was halted by a Request for Further Information dated 24^th January, 2001. This turn of events disturbed the applicant's principal who protested to the City Manager as to the need for the request. In any event a decision to grant permission with conditions issued on 4^th April, 2001.

8. The notice of 24^th January, 2001 was clearly in part at least defective. It is not necessary for the purposes of this judgement to adjudicate as to whether the notice was void in its entirety as a permission has issued and no attempt to set aside the decision has been made to date (or can be made in the future due to the efflux of time). The question of the validity of the notice is relevant only in so far as it may assist the Court in adjudicating on the later similar type letter in the later application which forms the basis of the judicial review.

9. With reference to the notice of 24^th January, 2001 the contents of paragraph 7 (which inter alia directs that a proposed window be omitted), paragraph 8 (which further directs the applicant on the number and location of windows), and paragraph 9 (which deals with the retention of double doors on the ground floor) are drafted as directions to the applicant as to what should be changed in the application (presumably so as to obtain approval).

10. These issues are raised in the context of Article 33 Local Government (Planning and Development Regulations 1994. This permits a planning authority to require an applicant

(a) to submit any further information (including plans, maps or drawings, or any other information as to any estate or interest or right over land) which they consider necessary to enable them to deal with the application.

(b) To produce any evidence which they may reasonably require to verify any particulars or information given in or in relation to the application.

11. The power of the planning authority to request further information under this Article is limited to matters which fall within Article 33. Article 33 requests should not (indeed cannot) be used to vary a planning application. Variation can only be done by agreement or by condition (and in these circumstances to a limited extent only in view of the public interest in planning applications) or by re-application. If a planning authority cannot get agreement or cannot apply suitable conditions to its decision it must accept or refuse the application as submitted. The authority is not the developer and should stay within its remit. It is clear that paragraphs 7, 8, and 9 of the letter of 24^th January, 2001 fall outside the terms of Article 33 in that they seek to direct amendments to the application a process not permitted under the statute. What is not clear is whether this was a deliberate and conscious act by the planning authority or merely a careless lack of understanding of the law. This Court believes that it is more likely to be the latter.

12. The events arising from the 2000 planning application are not relevant to the decision of this Court in the matter to be adjudicated at this hearing except to the extent that they show the state of knowledge of the law within the planning department and indicate the practice within the planning department of the respondent. In that regard it is clear that the planning authority had little understanding as to the proper use of Article 33 and the limitation of their powers there under.

13. One additional matter arises in the context of the Request for Further Information dated 24^th January, 2001 i.e. was that request made for a proper reason or was the request merely a device to gain extra time to consider the application? It is not necessary for the Court to decide that question in the context of this application but the coincidence in the timing (five days before the expiry of the two month period) is a matter which may arise later in the context of the application the subject of this Judicial Review.

14. Permission issued on 4^th April, 2001 with conditions including a refusal to insert windows in the gable of the house.

15. An application concerning the return of the house and windows was submitted on 12^th July, 2001. This is application number 2105/01 and it is the subject of this Judicial Review.

Application 2105/01 (hereinafter 'The 2001 Application')

The 2001 application is described as follows:

"For development comprising revisions to development previously permitted under reg. ref. 3824/00 for alterations/refurbishment of a property which is a protected structure. Revisions to comprise removal and replacement of gable wall to rear of original return and including new fenestration; provision of gallery (plus void over ground floor; at upper ground floor of rear section of return; reconfiguration of lightwell and kitchen at basement at rear old house; reconfiguration of permitted new room layout at basement and part of upper ground floor return; alterations to open in side wall of rear return alteration to open at main car ground floor room to provide access to terrace via new walkway, minor alterations to internal features and finishes; alterations to terrace materials; new skylight to finishes; alterations to internal features and finishes; alterations to terrace materials; new skylight to roof of return; all at no. 71 Merrion Square, Dublin 2."

The 2001 application included what is described by the applicant as an 'appropriately proportioned classical' window in the return which was supported by a letter from the Irish Georgian Society (sent on 15^th August, 2001) and a report from a Dr Gibney a fellow of the Royal Institute of Architects of Ireland. This window was the focus of much of the disagreement.

The 2001 application was lodged on or about 13^th July, 2001. Nothing appears to have happened in the processing of the file until late August.

A meeting on the project was held 22^nd August, 2001 between the applicant's team and the Planning Officer and Conservation Officer representing the respondent. At this meeting the alleged lack of familiarity of the Conservation Officer with the application upset the applicant's principal leading to a complaint to the City Manager by letter 24^th August, 2001. This led to a response which included the following passage in a letter dated 7^th September, 2001;

"Recent site visits and discussions between Planning Department staff and your architect indicate that perhaps the full scale of interventions as envisaged previously, may not be covered in the current application. In the circumstances it is most advisable that your architect would make a full assessment of all the issues that require approval and make a comprehensive planning application to cover the works that have been done outside the previous application and are proposed in this application."

This led to a sharper tone in the applicant's principal's reply dated 10^th September, 2001 which concluded as follows;

"It is unreasonable for you to threaten use of the planning Enforcement Code when at all stages we have been at pains to comply with the planning procedures and any queries raised by the planners. My design team will continue to work with the planners to resolve the issues and are available to meet your officials. I am happy to meet with you but not if it going to delay the process even further. I will not rest until I am satisfied that the matter is being dealt with fairly, professionally and openly by Dublin Corporation."

A decision was due on the application not later than 12^th September, 2001 and the applicant's advisers were requested by the respondent to seek a time extension which would be granted by the Council. Time extensions can only be granted by the planning authority at the request of the applicant. On the face of it this appears to have been on the basis that the planning authority needed extra time to make a decision. The applicant refused to facilitate the Planning Authority and by letter of 7^th September, 2001 conveyed that refusal. In that letter the writer (Mr Dermot Desmond), with perspicacity, anticipated that the respondent would issue a letter seeking further information in order (it is said) to buy time for the decision.

By notice dated 10^th September, 2001 a request for further information in accordance with Article 33 of Local Government (Planning and Development Regulations), 1994 was issued This contained five separate requests as follows;

1. The public notices do not adequately describe the proposal. The public notices shall be modified so as to make clear that the applicants are applying for retention of works already carried out.

2. An appraisal of the fabric of the return building by the structural engineer based on the opening works to determine the overall condition and to clarify the structural issues regarding the repair and conservation of the return building.

3. Photographic survey of the internal and external walls of the return building indicating the fabric of the structure after the completions of the authorised demolitions, to be submitted in support of the proposals.

4. Clarifications of the proposals to the front and rear rooms of entrance level is requested to indicate the impact of the modifications on the character of the interiors.

5. A photographic and measured survey to clarify the details of the basement staircase prior to its removal including all joinery and plaster cornice profiles and details to the stairwell enclosure.

The effect of this notice (if valid) was to suspend the application pending receipt of the requested information.

The applicant disputed the validity of the request by letter dated 28^th September, 2001 but supplied some of the requested information. The applicant commenced these proceedings on 26^th October, 2001 and shortly thereafter a permission with conditions purported to issue on 6^th November, 2001 on the basis of the partial information supplied.

The respondent submits inter alia that after the issue of the 'permission' on 6^th November, 2001 the applicant is estopped from seeking the reliefs sought and strongly defends the validity of the request for information.

The respondent's principal Affidavit of Norman Boyd dated 30^th November, 2001 herein contains much information relating to the 2000 application rather than the 2001 application which form the basis of these proceedings. It does, however, deal to some extent with the 2001 application and replies to the applicant's principal affidavit as follows;

The explanation given for the request for the time extension appears to be that the situation on site did not reflect the application then made. This in no way explains why an extension of time was requested. The request mixes up the processing of the planning application before the authority with planning enforcement issues. This appears to be quite close to repeating the error made in considering the 2000 application when the planning authority sought to amend the application or clear up other planning matters (on threat of refusal) rather than assess the application before it.

Mr Boyd's affidavit further states that the matters raised by the (Article 33 notice) were all essential to the processing of the application. The matters are addressed seriatim in the affidavit as follows;

The justification for the first request is said to be that various works were carried out outside the scope of either the 2000 permission or the 2001 application and the position of this additional work must be regularised.

Whether this is so or not is a matter of opinion and the planning authorities view is disputed by the applicant. The factual position depends on interpretation of the documents and ultimately the arbiters of disputed facts of this kind are An Bord Pleanala and/or the Courts. It is inappropriate for the planning authority to seek to mould an application to its will; its job is to adjudicate on the application before it. In this case the use of the coincidence of a current planning application (without agreement) to rectify alleged planning breaches is not appropriate.

The reason for the second request is stated to be that any proposal to demolish part of a protected structure (even a portion not original to the building) could only be approved in exceptional circumstances.

The information as submitted to the planning authority did not in the view of the planning authority establish exceptional circumstances. If that was the view of the authority, then refusal would appear to have been the correct decision.

The third request appears to have more substance. The affidavit sets out that the survey is needed to help in assessing the structural condition of the building.

This object is somewhat contradicted by a planning report produced at the time of the November 2001 'grant' which uses the general term 'to support the proposed development' as the reason for the request. The third request remains a possible legitimate Article 33 request but it is difficult to avoid a conclusion that the planning authority even in this case had sufficient information to decide on a refusal or a permission limited by conditions.

The fourth request related to clarification of proposals to the front and rear rooms at entrance level.

While some possible changes were indicated in the drawings submitted with the 2001 application these were not covered by the application and any attempt to force the applicant to expand its application to cover these was outside the scope of Article 33. If these items were covered by the previous permission they could acted upon, if not they would not benefit from the 2001 application as they were outside its scope.

The fifth request was to place on public record what was removed.

This was more appropriate to a condition and in no way prevented the planning authority from making a decision.

The Conservation Officer of the planning authority supported the principal affidavit of the respondent. In it she states at paragraph 57 that the information requested was essential in determining the proposal.

In summary there were five requests under Article 33 covered by notice of 10th September 2001. Four of these matters were on their face not proper requests under Article 33, a fifth may have been. The Court must consider if that single request, possibly legitimate on its face, saves the process from running out of time. In the alternative is the request in its entirety (notwithstanding that one potentially legitimate request) legally flawed so failing to stop the default provisions?

The following matters have relevance in answering that question.

The Purpose and Legal Effect of the Article 33 Request

The history of the processing of planning applications in respect of this property reflects no credit on the planning authority. The 2000 application had had its time limit 'extended' by Article 33 requests, many of which were on their face outside the scope of Article 33 of Local Government (Planning and Development) Regulations 1994 the purported source of their authority.

The 2001 application itself appears to have had little attention until the eve of the expiry of the time limit for its consideration. A site meeting was held and the planning department received a report, late in the two-month period, from the Conservation Officer (who quite rightly points out that she did not have planning functions). This report appears to have been the catalyst for two defensive strategies by the planning authority.

The first approach was to seek an extension of time. This was requested from the planning applicant on 7^th September, 2001 (the request for such an extension must come from the applicant but is often initiated by the planning authority). The applicant refused to facilitate the request.

There has been more than one explanation as to the reason for the extension. An examination of the reasons given will assist in assessing the bona fides (or otherwise) of the planning authority. One explanation already referred to was a 'need to clear up problems' that arose as a result of unauthorised development. This clearly was an issue external to the application and not a valid reason for extra time.

In contrast at Paragraph 29 of the principal affidavit of Norman Boyd states that the reason for the request for an extension was not because insufficient time (to process the application) was available. Whatever the reason for the lack of time the need for more time was at the centre of the request to the applicant. The nonsense of denying that they were short of time to consider the application is compounded by a suggestion in paragraph 27 of the same affidavit that the extra time was needed 'to ensure a speedy resolution to the application'. In other words 'give us more time so that we can make a faster decision'!!!

The second approach was to issue an Article 33 request which if valid stopped the time running against the planning authority. That this was initiated after the refusal to extend is not denied. The basis of the request is a report of 7^th September by the Conservation Officer. At paragraph 57 of her principal affidavit The Conservation Officer avers

"On September 7^th I informed the Planning Department that the planning file contained in Planning Register Reference Number 2105/01 had been assessed and the site inspected. The following information was necessary to substantiate the development proposals and to clarify the impact of the modifications to the primary fabric. I categorically state that the request for further information was made on foot of a thorough inspection of the file and the information requested was essential in determining the proposals."

This gave rise to the five requests at least four of which are outside the scope of the planning authorities powers.

That the Requests strayed beyond the scope of Article 33 is not surprising. As noted above, in the earlier 2000 application Section 33 requests were made based on a report from the same Conservation Officer. Many of these requests were outside the scope of the Regulations. This is not surprising, as the Conservation Officer's expertise is not planning but conservation. As an example of her primary focus she rightly proudly indicates that on her recommendation at the time of the 2000 planning application some unused material from the house was to be sent to the Hunt Museum as the custodian of the work of a previous owner of 71 Merrion Square the well known Sybil Connolly. Admirable as this may be it is not the work of a planner.

Because she was not a planner the advice of the Conservation Officer should have been assessed and processed by those who had the delegated authority in the determining planning permissions. It is clear based on the experience of the 2000 and the present 2001 applications that the planning process had subsumed itself to requirements of the Conservation Officer without legal authority. The Court is in no doubt that the improper invoking of Article 33 in respect of at least part the notice of 24^th January, 2001 (in respect of the 2000 application) and the four out of five improper requests in the notice of 10^th September arose as the issues were never considered at planning level in any meaningful way prior to the issue of the notices.

There is no evidence of any preparatory work to assess the application of 2001 within the planning department prior to 10 September, 2001 other than the receipt of a report from the Conservation Officer. This report was produced in contemplation of the need for more time and written against that background. The Conservation Officer's report seems to have formed the only basis for the formal request dated 10^th September, 2001 from the planning officer dealing with the file, Norman Boyd, to the person with delegated responsibility the Dublin Planning Officer. Mr Boyd's documentation is void of any detail which would support a view that the planning department had directed its mind to the application or given any consideration to the application other than receiving the report from the Conservation Officer. The Court concludes that the planning department either commissioned the report from the Conservation Officer to buy time to hide its own lack of activity or used its coincidental arrival for that purpose. The request to the Dublin Planning Officer from Mr Boyd was devoid of any detail on which that Officer could make a reasoned decision.

At the time of the issue of the notice of 10^th September the planners had the application and a report from a Conservation Officer on that application. The planning office had taken no practical step to consider the application within the two months. They probably had enough information to approve the application subject to the same conditions as were ultimately applied but they definitely had enough information to refuse it. The law required them to make a decision unless they lacked information to make any decision. The unusual refusal of the applicant on the time extension request should have alerted the planning office to deal with this application strictly in accordance with law.

The Court is therefore satisfied that;

1. Requests one, two, four and five did not fall within the authority of Article 33 and while request three might have been legitimate in other circumstances the surrounding facts render it likely that it was included as part of a document with a hidden and illegal purpose of gaining more time for the planning Authority to do its work.

2. The notice of 10^th September, 2001 was not issued bona fide but was a device to extend illegally the time to consider the application.

3. Factually at the time of the issue of the notice the planning authority had enough information to refuse (and probably to approve with the same conditions as were ultimately applied) the application and

4. The planning Authority did not independently consider the information necessary to decide the application, had not directed its mind to the application and had taken no planning steps of substance to make such an assessment, but relied on the expertise of a Conservation Officer reporting on a matter outside her area of expertise.

In reaching the above conclusions the Court is conscious of the legal rationale of the default mechanism which the Court must consider later. In The State (Abenglen Properties) v Dublin Corporation [1984] 1.R p 381 at 397 Walsh J sets out the purpose of the default provisions as follows (emphasis added);

"In my view the default provisions were enacted for the purpose of compelling a local authority to direct its mind to the application. They do not amount to a statutory decree that every decision must be one which is sustainable in law. In my view a decision, which when questioned is found to be ultra vires or unsustainable in law for any reason is nonetheless a decision for the purposes of the default provisions."

In this case the Court has concluded that the planning authority had not directed its mind to the planning application in any meaningful way prior to the expiry of the statutory period.

If the Court had any doubt about the necessity for the questions raised in the letter of 10^th September, 2001 it was set aside by an examination of the text of the 'permission' issued on 6^th November and the reasons behind that decision. This formed part of the submission from the respondent. In it the respondent acknowledges that the structural report received was not satisfactory, nor was the photographic survey. Yet the respondent had no difficulty in making a decision in the absence of the requested information.

In so far as the respondent has sought to rely on the continued participation of the applicant in the planning process leading to a purported permission on 6^th November, 2001 the Court is of the view that such participation was entirely proper and was at all times made subject to the objections as to the validity of the request of 10^th September, 2001. As early as 28^th September, 2001 the response on behalf of the applicant is stated to be

'Without prejudice to our client's contention that the notice of 11^th September, 2001 is not a valid and/or a bona fide request for further information'

There could hardly be a clearer early repudiation of the impugned document.

Further prior to the planning decision of 6^th November, 2001 already referred to, these proceedings commenced by way of application to the High Court on 26^th October, 2001.

Any suggestion that the 'decision' of 6^th November, 2001 in some way cured any defect in the process is rejected. If it were so any delay could be cured by the simple process of a later decision rendering the default process a nullity. Further the statutory provisions of S 26(4) Local Government Planning and Development Act 1963 (if applicable) backdate any default permission to the expiry of the appropriate period rendering any later 'permission' void.

Legal Consequences of Findings

The Court now turns to the legal consequences of its decision.

S 26(4) Local Government Planning and Development Act 1963 provides;

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."

The appropriate period is defined as including the following of relevance in this case.

The appropriate period means;

"In case of any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to the permission regulations within the period of two months beginning on the day of the receipt by the planning authority of the application- within the period of two months beginning on the day on which the notice or notices has or have been complied with…….

As this Court has already decided that the notice of 10^th September was not valid the appropriate period in this case would appear to have expired on or about the 12^th September, 2001. In these circumstances the Court now considers the appropriate relief (if any).

Section 26 (4) of the local Government Planning and Development Act 1963 appears to make clear that permission shall be regarded as having issued in such circumstances. The Courts have been reluctant to implement this rather crude instrument of control notwithstanding the clear terms of the statute. In the leading yet unreported case of The State (Conlon Construction Limited) v. the County Council of the County of Cork 31/7/1975 Butler J. found that the request made by the planning authority, in that case, was invalid but he did not make the order sought concerning the default permission. He based his decision on the discretion which he felt attached to all state side applications and used that discretion to refuse the default permission.

It is difficult to understand how a legal procedure such as judicial review (which in this context is only a process used by the courts to process disputes) can set aside the clear provision of the statute. Yet the difficulties of not so doing are immense. The courts recognise the necessity for some protection for the public from far-reaching decisions arising from errors within a planning authority. However, the courts can only work within their mandate and it appears to this court that a difficulty might arise in this area in the future. It is a matter for others to assess whether the present law is sufficiently protective of the public good.

Difficulties of a similar nature were tangentially referred to by Walsh J in The State (Abenglen Properties) v Dublin Corporation [1984] 1.R p 381 at 397 quoted above where the learned judge decided that ultra vires decisions to approve or refuse planning were nevertheless decisions and on being struck down did not give rise to default permissions. In a suitable case it might be appropriate to consider the application of that principle to defective Article 33 requests but to do so would set at nought the provisions of S26(4) by enabling the planning authority to effectively get unlimited extensions by the means of ultra vires requests. Such an outcome would be contrary to the clear intent of the provision dealing with time limits. The Oireachtas has legislated, very restrictively, in a way which prevents a planning authority extending time for the consideration of an application except on the application in writing of the applicant.

Thankfully, in this case, it is not necessary to decide whether the default permission is mandatory or discretionary. Because the ultimate result in this case will be the same whether the Court operates on the basis that the default mechanism is mandatory or discretionary a decision on this matter is not necessary and the Court proceeds on the same basis as used by Butler J in of The State (Conlon Construction Limited) v. the County Council of the County of Cork 31/7/1975. While the legal principles to be applied are the same the facts are different. Unlike the Conlon Construction Ltd case what is at issue in this case is not the proper planning of a large tract of land but details of the rear of a historic building. Both the applicant and the planning authority are focused upon the preservation of a historic building with different emphases. The major differences at issue in this application between the applicant and the planning authority relate to the demolition of an addition which is not part of the original house and the opening of windows overlooking the rear garden. Neither of these matters appears to this court to be of sufficient importance to deny the applicant the relief sought on the grounds of public policy. Further the court finds no fault with the applicant's behaviour which would disqualify it from the relief sought.

The Court grants the relief sought in Paragraphs 1, 2, and 3 of the Leave granted on 26^th October, 2001 herein.

Approved: O'Leary J.