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Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kerry County Council v. Lovett [2003] IESC 37 (4 June 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/37.html
Cite as: [2003] 2 IR 589, [2003] 2 ILRM 434, [2003] IESC 37
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    THE SUPREME COURT
    Keane C.J.
    Murray J.
    McGuinness J.
    Geoghegan J.
    McCracken J.

    323/02

    BETWEEN

    THE COUNTY COUNCIL OF THE COUNTY OF KERRY
    APPLICANT
    AND
    KEVIN LOVETT RESPONDENT

    JUDGMENT delivered the 4th day of June, 2003, by Keane C.J.

    Introduction

    1.     This is a Consultative Case Stated pursuant to S.16 of the Courts of Justice Act, 1947 by His Honour Judge Harvey Kenny, sitting as a judge of the South Western Circuit. It arises out of an application by the Applicant (hereafter "the County Council") under S.27 of the Local Government (Planning and Development) Act 1976, for an order prohibiting the continuance of what was alleged to be an unauthorised development i.e., the erection of a dwelling house, installation of a septic tank and percolation area and creation of a road entrance on a site at Gortrooskagh, Bonane, Kenmare in the County of Kerry.

    2.         The facts, as set out in the Case Stated, are as follows. The Respondent applied for permission under S.26 of the Local Government (Planning and Development) Act 1963 (hereafter "the 1963 Act") for the development in question on the 11th November 1999 to the County Council who are the planning authority for the County of Kerry. Further information, plans and particulars were submitted on 28th January 2000 and on the 29th May 2000 the Respondent requested the County Council to defer its decision on his application.

    3.         On the 19th June 2000, the elected members of the County Council passed a resolution under S.4 of the City and County Management (Amendment) Act, 1955 (hereafter "the 1955 Act") as follows:

    "That we, the members for Kerry County Council, hereby direct the County Manager, pursuant to S.4 of [the 1955 Act] and S.39 of the Local Government (Planning and Development) Acts 1963 – 1992 and the Local Government Act 1991 to grant planning permission to (the Respondent) to erect a house in accordance with plans submitted on planning register No. 3198/99."
    4.         The minutes of the meeting at which the resolution was passed record that a report was read by the Assistant County Secretary recommending that the application be refused as the proposed dwelling house

    "would be visually obtrusive and dominant on the landscape and would create a very bad precedent for further development of this nature."

    5.         It also appears from the minutes that the member of the County Council proposing the resolution specified five conditions subject to which the permission should be granted. The motion was carried by 21 votes to none.

    6.         On the 21st July 2000, an Order was signed by the secretary to the County Council, the relevant part of which is as follows:

    "By virtue of the provisions of the County Management Acts 1940-1994 IT IS HEREBY ORDERED and decided that in accordance with the resolution of the Council at meeting of 19th June 2000 under S.4 of [the 1955 Act] as amended by S.45 of the Local Government Act 1991to grant permission under the Local Government (Planning and Development) Acts, 1963 – 1968

    "to: [the Respondent] Gortrooskagh, Bonane, Kenmare, Co. Kerry

    "in respect of: the erection of a dwelling house, installation of a septic tank and percolation area and creation of a road entrance

    "at: Gortrooskagh, Bonane, Kenmare, Co. Kerry in accordance with the plans and particulars submitted by [Respondent]

    "on: 15/11/99, 28/01/00, 14/02/00, 26/04/00 and on 29/05/00 subject to the following conditions….

    [there follow the conditions as specified by the proposer of the motion at the meeting of the County Council on 19th June 2000]

    "….. AND IT IS HEREBY ORDERED that the said outline permission, subject to the foregoing conditions, shall be deemed to be and is hereby granted in respect of said development unless an appeal is lodged with An Bord Pleanala against the decision to grant said permission within one month of the date of this order."

    7.         On the 14th July 2000, the Respondent served a Commencement Notice, paid the requisite fee to the County Council, and, one week later, commenced construction work on the site. On the 14th August, 2000, the Kerry branch of An Taisce lodged an appeal with An Bord Pleanala against the said decision and on the 19th August 2000 the Respondent was notified by An Bord Pleanala of the lodgment of the appeal by An Taisce.

    8.         Following the service of a Warning Notice by the County Council on the Respondent, work ceased on the development in September 2000 and, following correspondence between the Respondent and the County Council, the former applied for permission to retain the existing works and to complete the construction of the house. That application was refused on the 27th March 2001.

    9.         On 13th March 2001, An Bord Pleanala decided to refuse permission for the development. In June 2001, the Respondent recommenced work on the house, which at the date of the hearing in the Circuit Court, was partially completed. The present proceedings were begun by a Notice of Motion dated the 29th August 2001.

    10.         At the hearing before the learned Circuit Court Judge, the County Council submitted that the development was unauthorised because the decision of the County Council to grant permission had been the subject of an appeal to An Bord Pleanala and their decision operated to annul the County Council's decision. It was submitted that the period within which an appeal had to be brought to An Bord Pleanala began on the day of the decision by the County Manager to grant permission, i.e., the 21st July 2000, and that accordingly the appeal by An Taisce was in time and valid. It was submitted on behalf of the Respondent that the resolution of the County Council of the 19th June 2000 constituted the decision to grant permission and that the time for making an appeal against the decision ran from that date. It was submitted, accordingly, that the appeal by the Kerry branch of An Taisce on the 14th August 2000 was not in time, was not a valid appeal and could not affect the validity of the decision of the County Council consisting of the resolution of the 19th June 2000.

    11.         It was further submitted on behalf of the County Council that, if the Respondent was of the view that An Bord Pleanala did not have jurisdiction to deal with the appeal, he should have made a submission to An Bord Pleanala to that effect and should have challenged the decision of An Bord Pleanala by way of judicial review within the period of two months prescribed by S.82(3A) of the 1963 Act as inserted by S.19(3) of the Local Government (Planning and Development) Act 1992. It was also submitted that the application subsequently made by the Respondent to retain the works already completed was an acknowledgement on the part of the Respondent that An Bord Pleanala had jurisdiction to hear the appeal.

    12.         On the application of the Respondent, the learned Circuit Court judge requested the opinion of this court on the following questions of law:

    "1. Did the resolution of [the County Council] on the 19th day of June 2000 constitute a decision within the meaning of S.26 of the [1963 Act] to grant planning permission to the Respondent in respect of the development proposed in planning application 3198/99 in accordance with its terms and subject to the five conditions referred to?

    And if the answer to this question is in the affirmative-

    2. Does the Respondent's failure to challenge the decision of An Bord Pleanala made on the 13th day of March 2001 within a period of two months from the date of that decision now deprive the Respondent of the right of asserting that he has valid planning permission for his development from [the County Council] in the form of the resolution made by [the County Council] on the 19th day of June 2000?"

    Submissions of the Parties

    13.         On behalf of the Respondent, Mr. James Macken SC submitted that the onus at all times was on the County Council to prove that the development had been carried out without planning permission and was, accordingly, unauthorised. He said that in every case where it was decided to grant permission under S.26 of the 1963 Act for a development, the decision was that of the planning authority, i.e., in the present case the County Council. That decision was made either by the manager in performance of the executive functions of the planning authority or, in a case where a resolution under S.4 of the 1955 Act was passed, by the elected members.

    14.         In the present case, it had been made by the elected members and, accordingly, the period for lodging an appeal to An Bord Pleanala began on the date of the passing of the resolution itself.

    15.         Mr. Macken submitted that the terms of Sections 16 and 17 of the County Management Act 1940, made it clear that, in every case it is the County Council or other local authority which exercises a particular function: there are not two separate bodies, the manager and the Council, but two methods of exercising the relevant function, i.e., by way of an executive function or a reserved function. The effect of S.4 of the 1955 Act was to enable the elected members to vest in themselves the performance of the executive function of the manager in a particular case. He said that this conclusion was borne out by the judgment of this court in P & F Sharpe Limited & Anor –v- Dublin City and County Manager & Anor [1989] IR 710.

    16.         As to the second question, Mr. Macken submitted that, the onus being at all times on the County Council to satisfy the court that they were entitled to the order which they sought, there was no burden on the Respondent to obtain the quashing of the order of An Bord Pleanala by judicial review and it would be oppressive to require them so to do in proceedings of this nature.

    17.         On behalf of the County Council, Mr. Dermot Flanagan SC submitted that the wording of S.4 of the 1955 Act made it clear that, where a resolution was passed under the section, it constituted a direction to the manager to take a particular step in the performance of an executive function of the local authority, in this case a decision to grant planning permission. The effect of an S.4 resolution was not to convert that executive function into a reserved function vested in the elected members: its sole effect, as found by this court in Sharpe, was to deprive the manager of the power he would otherwise enjoy to decide the planning merits of the application and to transfer that decision to the elected members. In such a case, the manager, having satisfied himself that the S.4 resolution was valid and that deciding to grant the permission would not result in a material contravention of the development plan (requiring him to initiate the procedure prescribed by S.26(3) of the 1963 Act as amended), was then obliged to make a decision to grant the permission sought. That this was the manner in which the relevant provisions were to be construed was borne out by the terms of S. 26(3) of the 1963 Act.

    18.         As to the second question, Mr. Flanagan submitted that S.82(3A) of the 1963 Act made it clear that the validity of a decision of An Bord Pleanala could not be challenged save in proceedings brought by way of judicial review within a period of two months commencing on the date of the decision. That had not been done in the present case and, accordingly the decision of An Bord Pleanala must, for the purposes of the present proceedings, be treated as valid. He further submitted that, the Respondent having applied for retention of the works already carried out and permission to complete the development, was estopped from contending that the decision of An Bord Pleanala was invalid, citing the decision of this court in Dublin County Council –v- Tallaght Block Company Limited, (unreported, judgment delivered 17th May 1983.)

    The Applicable Law

    19.         The County Management Act 1940 established the structure under which all the functions of a local authority, other than those expressly reserved to the elected members of the authority by that or subsequent legislation, are to be performed by the manager. Functions in the former category are described as "reserved functions" and the latter category as "executive functions".

    20.         Section 4 of the 1955 Act provides inter alia as follows

    "(1) Subject to the provisions of this section, a local authority may by resolution require any particular act, matter or thing, specifically mentioned in the resolution and which the local authority or the manager can lawfully do or effect to be done or effected in performance of the executive functions of the local authority.
    (2) Notice of the intention to propose a resolution under this section shall be given in writing to the manager and
    (a) The notice shall be signed by three members of the local authority,
    (b) The notice shall contain a copy of the resolution,
    (c) The notice may require that the resolution shall be considered at a special meeting and shall then specify a day (not less than seven days after the date on which the notice is received by the manager) for the holding of the special meeting….
    (6) Without prejudice to any other relevant requirements, it shall be necessary for the passing of a resolution under this section that the number of members of the local authority voting in favour of the resolution exceeds one third of the total number of the members of the local authority…..
    (8) Where a resolution is passed under and in accordance with this section, the manager shall, if and when and so far as money for the purpose is or has been provided, do or effect in accordance with the resolution, the act, matter or thing specified in the resolution.
    (9) A resolution under this section shall not –
    (a) apply or extend –
    (i) to the performance of any function of a local authority generally,
    (ii) to every case or occasion of the performance of any such function or to a number or class of such cases or occasions so extended as to be substantially or in effect every case or occasion in which any such function is performed, or
    (iii) to every case or occasion of the performance of any such function in a particular area or to a number or class of such cases or occasions so extended as to be substantially or in effect every case or occasion on which any such function is performed in that area, or
    (b) apply or extend to the performance of any executive function in relation to the officers or servants of a local authority or the control, supervision, service, remuneration, privileges or superannuation of such officers or servants or any of them,
    and any resolution purporting to be passed under this section which contravenes this subsection shall be void….."
    21.         (Section 44 of the Local Government Act 1991 provided that, in the case of resolution under this section relating to a planning function, it was to be signed by a specified number of members elected to the authority for the local electoral area or areas in which the land was situated. It also provided that, in the case of such a resolution, the number of members voting in favour of the resolution was not to be less than three-quarters of the total number of members of the authority.)

    22.         Subsection (1) makes it clear that it is an essential precondition to the operation of the power which it grants to the elected members that the "act, matter or thing" mentioned in the resolution can be lawfully done or effected by the local authority or the manager. Where that precondition is met, then, as the subsection makes clear, the resolution may require the particular act, matter or thing

    "to be done or effected in performance of the executive functions of the local authority."
    23.         Section 26(1) of the 1963 Act provided that

    "where
    (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and
    (b) any requirements relating to the application of or making of such regulations are complied with,
    the authority may decide to grant the permission or approval subject to or without conditions, or to refuse it and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the development plan, the provision of any special amenity area order relating to the said area and the matters referred to in subsection (2) of this section".
    24.         It is not in dispute in this case that the function conferred by subsection (1) on the planning authority was an executive function. (Subsequent to the institution of the proceedings in the present case, the 1963 Act was repealed, and many of its provisions re-enacted, by the Planning and Development Act 2000.)

    25.         Subsection (3)(a) of S. 26 provided for the circumstances in which a planning authority may decide to grant permission for a development which would contravene materially the development plan or any special amenity area order. It requires the giving of notice of the intention of the authority to consider deciding to grant the permission and consideration by the authority of any objection or representation as regards the making of the decision. Subsection 3(a)(iv) provides that, where the other requirements of the subsection have been met, the authority may decide to grant permission where

    "a resolution shall be passed by the authority requiring that a decision to grant permission be made."
    26.         Subsection (3)(c) and (d) provides for a case in which a notice is given under S.4 of the 1955 Act and the manager is of the opinion that the development will contravene materially the development plan or any special amenity area order. It provides that

    "(c) Where notice is given pursuant to S.4 of [the 1955 Act] of intention to propose a resolution which, if passed, would require the manager to decide to grant permission under this section, then if the manager is of opinion that the development concerned would contravene materially the development plan or any special amenity area order, he shall within seven days of the receipt by him of the notice make an order (a copy of which shall be furnished to him by each of the signatories to the notice) requiring that the provisions of subparagraphs (i), (ii) and (iii) of paragraph (a) of this subsection shall be complied with in the particular case and the order, when made, shall operate to cause the relevant notice given pursuant to said S.4 be of no further effect.
    "(d) If a resolution referred to in paragraph (a)(iv) of this subsection is duly passed, the manager shall decide to grant the relevant permission."
    27.         Subsection (9)(a) provides inter alia that

    "Where the planning authority decide under the section to grant a permission or approval –
    (i) In case no appeal is taken against the decision, they shall make the grant as soon as may be after the expiration of the period for the taking by the applicant of an appeal or, in a case to which subsection (4) of this section applies, of the period for the taking of an appeal otherwise than by the applicant…."
    28.         The period for the taking of an appeal is one month from the date of the giving of the decision by the planning authority.

    29.         Subsection 9(a)(ii) provides that, where an appeal is brought and withdrawn or dismissed, An Bord Pleanala are to make the grant of permission as soon as may be after such withdrawal or dismissal.

    30.         The effect of the passing of a resolution under S.4 of the 1955 Act on the performance by the manager of the executive function vested in him under S.26 was considered by this court in P & F Sharpe Limited & Anor. –v –Dublin City and County Manager & Anor. In that case a resolution was passed under the 1955 Act directing the manager to grant permission for a development consisting of a new road giving access to a site on which the applicant was proposing to build houses. The manager refused to comply with the direction because he considered he was being asked to do something which the authority could not lawfully do in the performance of its executive functions and he made a decision refusing the application. The applicant sought judicial review by way of certiorari to quash the decision of the manager refusing the application and mandamus to compel the manager to grant the permission. The applicant succeeded in the High Court, but this court allowed an appeal in respect of the order of mandamus directing the manager to grant permission.

    31.         In his judgment, Finlay CJ (with whom Hamilton P, Walsh, Griffin and Hederman JJ agreed) said that, since the development materially contravened the development plan the manager was obliged to initiate the procedure prescribed by S.26(3)(c) of the 1963 Act. But the learned Chief Justice was also of the view that, a valid resolution having been passed under S.4 of the 1955 Act, the manager was not entitled as a matter of law to refuse to grant the permission. In a passage from his judgment which was relied on by counsel for the Respondent, having referred to the fact that the making of a decision to withhold or grant permission under the Act of 1963 was a function of a planning authority which must be exercised in a judicial manner, Finlay CJ went on as follows:

    "The application of that principal, however, to the situation where the elected members of a local authority give a direction pursuant to S.4 of the Act of 1955 to a manager to grant or refuse a permission does not and could not lead to the conclusion that the manager to whom such a direction is given has a new right or duty to exercise a discretion in a judicial manner on the application before him. What clearly does occur is that the obligation to act in a judicial manner is by virtue of the service of notice of intention to propose a resolution under S.4 of the Act of 1955 transferred from the county manager to the elected members. They must act in a judicial manner within the general terms which I have shortly indicated before reaching any conclusion on the resolution. If, however, having done so, they do resolve to give a direction to the county manager, I have no doubt that the proper construction of S.4 is that he carries out that part of his statutory duty as a mere executive duty and is not entitled, provided the resolution is valid and lawful, to exercise any separate or independent discretion as to whether or not he will obey it. If, of course, the elected members do not resolve to operate S.4 of the Act of 1955 the county manager's duty to act in a judicial manner in considering the application for permission revives."
    32.         It is of interest that Blayney J, sitting as a High Court judge, in Kenny Homes & Company Limited –v- Galway City and County Manager [1995] 1IR 179 at p.189, while acknowledging that the effect of Sharpe was that a direction to grant planning permission could be the subject of an S.4 resolution, was also of the opinion that the section was not "an appropriate instrument" for such a direction. The learned judge pointed out that, since the members of the local authority had to consider an application for planning permission under S.26 in a judicial manner, they must be in a position where they can choose whether to grant or refuse a permission or to grant it subject to conditions. He remarked that it was very difficult to see what form a proposed resolution could take which would leave the local authority free to consider all the options possible under S.26.

    33.         The court was not invited in the present case to reconsider its decision in Sharpe. It is, accordingly, unnecessary to pursue that aspect any further and, in particular, to express any opinion as to the weight to be attached to the apparent acceptance by the Oireachtas in S.26(3) of the 1963 Act of the applicability of the S.4 procedure to decisions as to planning permissions.

    Conclusions
    34.         As has already been pointed out, the effect of the passing of the resolution under S.4 of the 1955 Act in the present case was not to vest in the elected members of the Council the function of deciding to grant or withhold permission. Under the provisions of S.26, that was an executive function, and remained an executive function, vested in the manager. The passing of the resolution constituted a valid direction by the elected members which obliged the manager to perform a particular act which he was empowered to do, i.e., the making of a decision to grant permission for the development in question.

    35.         Where an application for permission was made under S.26 of the 1963 Act then, unless the manager decided to refuse the application, there followed of necessity, in a case where no appeal was brought to An Bord Pleanala, the exercise by him of two executive functions, the first under subsection (1), i.e., a decision to grant the permission and the second under subsection (9)(a)(i), i.e., the grant of the permission. I see no reason to impute to the Oireachtas an intention to convert the first of those executive functions into a reserved function where a resolution was passed under S.4 of the 1955 Act directing the grant of a planning permission. There is nothing in the wording of S.4 of the 1955 Act which would lend support to such a proposition and it is wholly inconsistent with the clear distinction between reserved and executive functions established by the City and County Management Act 1940.

    36.         Of course, the decision the manager makes in such a case is not the result of any adjudicative process in which the aspects of the development pointing either to its refusal or its grant with or without conditions have been evaluated. That adjudication, in theory at least, has already been carried out by the elected members. But it remains for him to perform the executive function of making a decision which, assuming he is satisfied that the resolution was validly passed and that the development will not materially contravene the development plan must, in such circumstances, be a decision to grant the permission.

    37.         It is true that, in the course of his judgment in Sharpe, Finlay CJ speaks of

    "the situation where the elected members of a local authority give a direction pursuant to S.4 of the Act of 1959 to a manager to grant or refuse a permission…."
    38.         However, I am satisfied that no significance can be attached to the use by the learned Chief Justice of that language: the court was not concerned in that case with the distinction between the decision by the manager to grant a permission and the grant itself, which is central to the resolution of the issue in this case.

    39.         It is also at least noteworthy that, when the Oireachtas dealt with the application of S.4 of the 1955 Act to resolutions which would require the grant of a permission for a development materially contravening the development plan, they used language which is strikingly at odds with the submission on behalf of the Respondent in the present case since, where the necessary resolution is passed, the manager must, under subsection (3)(d), "decide to grant the permission". However, the question as to whether the Oireachtas enacted that particular provision under a misapprehension as to the state of the existing law and, if so, what the consequences of such a misapprehension are, does not, as I have already indicated, require to be answered in the present case.

    40.         I would answer the questions in the Case Stated as follows:

    (1) No.
    (2) Does not arise.

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