Planning appeal not valid unless strict compliance with statutory formalities

George Graves (applicant) v An Bord Pleanala (respon- dent) and Cork County Council and Raymond Hennessy (notice parties).

Judicial Review - Lodgement of appeal against decision to grant planning permission - Refusal of An Bord Pleanala to accept appeal - Whether appeal lodged within time specified - Purpose of statutory provisions - Estoppel - Local Government (Planning and Development) Act 1992 (No 14), sections 4, 9, 10, 12 and 17 - Local Government (Planning and Development) Act 1963 (No 28), section 26(5) - Holidays (Employees) Act 1973 (No 25).

The High Court (before Mr Justice Kelly); judgement delivered 17 June 1997.

The requirements of section 4 of the Local Government (Planning and Development) Act 1992 were mandatory and strict compliance with the provisions was necessary to ensure a valid appeal. The interests of certainty and just and fair procedures required that the provisions be interpreted strictly. The High Court so held in refusing to grant the applicant's application for an order quashing the decision of An Bord Pleanala which had refused to accept his appeal and had determined that his appeal was invalid.

Jeremiah Healy SC and John Joseph Lucey BL for the applicant; James Macken SC and Nuala Butler BL for the respondent.

Mr Justice Kelly the applicant sought by way of judicial review to quash the decision of the respondent authority to refuse to accept his appeal against planning permission granted by the notice party, Cork County Council declaring that his appeal was invalid.

Mr Justice Kelly outlined the facts of the case. On 19 December 1996 Cork County Council, the first notice party, decided to grant planning permission to the second notice party for a development at Bantry, County Cork. Such permission was objected to by the applicant and others and on 20 December 1996 the applicant, through his solicitors, was notified of the decision of Cork County Council to grant planning permission subject to conditions.

The applicant instructed his solicitors to appeal to the respondent, which appeal had to be made before the expiration of one month from the date of the decision and therefore had to be made on or before 18 January 1997. A letter dated 14 January 1997 was written by the applicant's solicitors setting out the grounds of appeal. On Saturday 18 January 1997 the applicant's solicitors instructed a Mr Martin to deliver the said letter, together with the prescribed fee of £100, to the offices of the respondent at the Irish Life Centre, Abbey Street, Dublin 1.

Mr Justice Kelly said that the letter was hand delivered on the instructions of the applicant's solicitors to a security man at the closed offices of the respondent on Saturday 18 January 1997. The said security man undertook to deliver the letter to an employee of the respondent on the following Monday. On the morning of the 20 January 1997 an employee of the respondent found the letter which had been pushed under the door of the reception area and handed it in at reception. The letter was opened by an employee of the respondent at some stage that day and the appeal date-stamped. That afternoon, the applicant's solicitor faxed the letter of appeal together with a covering letter notifying the respondent that the letter of appeal had been hand-delivered on Saturday 18 January 1997 to the security man. Confirmation of receipt was requested but none was received by the applicant's solicitors.

On 29 January 1997 the respondent returned the letter of appeal, the fax and the fee of £100 together with a letter to the applicant's solicitors informing them that the appeal was regarded as invalid as it had not been received within the prescribed time under the provisions of the Local Government (Planning & Development) Act 1992 (the Act of 1992). It was that decision of the respondent which the applicant sought to judicially review. Mr Justice Kelly considered the relevant statutory provisions. Section 4(5) of the Act of 1992 provides that appeals must be either (a) sent by prepaid post to the Board, or (b) left with an employee of the Board at the offices of the Board during office hours. Section 17(1)(b) of the Local Government (Planning and Development) Act 1963 provides that where the last day of the appropriate period is a day when the offices are closed then the appeal shall be considered valid if received by the Board on the next following day on which the offices of the Board are open. While there was no statutory definition of "office hours" Mr Justice Lynch accepted that the applicant's solicitors were well aware of the opening hours. Mr Justice Kelly said that section 4(5)(b) required that the appeal be left with an employee of the Board at the offices of the Board. The applicant submitted that once the appeal was left with an employee of the Board at the offices of the Board during office hours then the provision was complied with. The Board conceded that one of its employees came into possession of the appeal on Monday 20 January 1997. The applicant submitted that the appeal was received by the Board on 20 January 1997 the next following day and, due to section 17(1)(b) of the Act of 1992, this rendered the appeal valid. The respondent submitted that the statutory provisions required strict compliance. The appeal had not been left with an employee of the Board at the offices of the Board but had been left with someone who was not an employee and therefore the appeal was invalid.

Mr Justice Kelly agreed with the respondent, saying that the wording of section 4(5)(b) was in mandatory terms. The applicant had not strictly complied with the terms of the section and it was only due to the concession made by the respondent that it had received the appeal on the next following day that the applicant could maintain compliance but, in the view of court, the obligation to comply with the terms of section 4(5)(b) was not discharged. Simply leaving the appeal at the respondent's offices was not enough for compliance. To depart from that procedure would run contrary to the statutory provisions and introduce an element of uncertainty into the procedure prescribed by the legislature. The applicant's submission was rejected. Mr Justice Kelly considered the applicant's second submission which was that as the appeal had been received by the Board on the next following day section 17(1)(b) of the Act was complied with, the appeal was valid. This contention was rejected by the court. To construe the section in that manner would mean that an applicant, whose last day for submission of an application fell on a day when the offices of the Board were closed, would have an advantage over an applicant whose last day fell on a working day. Such an applicant would only have to comply with the requirements of section 17(1)(b) and not those of section 4(5)(b). Among other advantages the former applicant would have no time restrictions within which to have his application received as section 17 did not impose any time limits.

Section 17 did not modify the procedure for submitting an appeal. It merely extended the period in which that procedure could be complied with. An appeal rendered invalid by failure to comply with the mandatory provisions of section 4 could not be cured by section 17(1)(b). That section was concerned with time alone. This interpretation would give rise to an absurd and unjust result in that all applicants would not be treated in a similar manner. Furthermore, that situation would result in uncertainty and abuse in that appeals could be submitted after midnight on the last day and could not be disputed by the Board.

Mr Justice Kelly considered the last submission of the applicant which involved the issue of estoppel. It was contended that because the Board did not reply to the fax sent by the applicant's solicitors on 20 January 1997 indicating that it would not treat the appeal as a valid one, it was estopped from now treating it as invalid. If the respondent had so replied the applicant could have attempted to resubmit the appeal before the close of business on 20 January 1997.

The court concluded that it was not reasonable to expect the Board to reply to a fax that was received ninety minutes before the close of business. The fact that no reply was sent indicating the respondents' views on the validity of the appeal did not mean that the respondent was estoppped from denying the validity of the appeal. Mr Justice Kelly refused the reliefs claimed and dismissed the application saying that the respondent was not wrong in law in rejecting the appeal.

Solicitors: Ronan Daly Jermyn (Cork) for the applicant; T.T.L. Overend, McCarron & Gibbons (Dublin) for the respondent.