Alan Marshall and Carol Marshall (applicants) v Arklow Town Council (respondent) and Aine Ni Donnachar and David Dempsey (notice parties).
Judicial Review - Application for certiorari - Planning and Development - Whether failure of planning authority to inspect site within 5-week period is a breach of obligation under the Act and Regulations - Whether such failure sufficient to render decision to grant permission invalid. The Local Government (Planning and Development) Act, 1992, (No 14), section 9 - The Planning and Development Act, 2000, (No 30), sections 34 and 50 - The Planning and Development Regulations, 2001 (S.I. 600 of 2001) articles 17, 19, 20 and 26.
The High Court (before Mr Justice Peart); judgment delivered August 19th, 2004.
In respect of a planning application it was clearly envisaged that the planning authority shall (not may or shall to the best of its ability or shall as far as may be practicable), on inspection of the land, consider whether the requirements of the regulations as far as the site notice is concerned have been complied with. The intention is clear from the wording of the Regulations themselves. If no inspection is carried out within the five week period then the decision subsequently contains a legal infirmity and must be quashed since there has been no compliance with the provisions of section 34(1) of the 2000 Act.
The High Court (Mr Justice Peart) so held in granting the relief sought.
David Hardiman, SC, and Aillil O'Reilly, BL, for the applicant; Patrick Butler, SC, and Gillian Reid, BL, for the respondent; Frank Callanan, SC, and Michael O'Donnell, BL, for the notice parties.
Mr Justice Peart commenced his judgment by stating that the application before him was for an order of certiorari in respect of a decision to grant permission for the erection of two houses on a site in Ticknock Lane near Arklow, Co Wicklow, He stated that at the heart of the matter was whether or not there was a site notice erected and duly maintained at the site in accordance with the requirements of Article 17(1)(b), 19 and 20 of the Planning and Development Regulations, 2001, and that was a purely factual matter. Mr Justice Peart then went on to say that another matter for consideration was whether the fact that the respondent planning authority, as is admitted by it, failed to inspect the site within that five-week period in order to satisfy itself that a site notice was duly erected and maintained, is a breach of any obligation upon it under the Act and Regulations which is sufficient to render the decision to grant permission invalid, especially in light of the allegation that no site notice was erected and maintained in position.
Mr Justice Peart then went through the factual background to the case. In about May, 2003, Bridget and Terry Keogh ("the Keoghs") bought and moved into a house at the corner of where the Dublin Road meets Ticknock Lane. Behind the house, which had an entrance on the Dublin Road, was a site capable of development. In about June, 2003, the Keoghs decided to apply for planning permission for the erection of a single dwelling on that site. They placed the usual notice in the Evening Herald and erected a site notice on the Dublin Road in accordance with regulations. They also consulted their neighbours, including the applicants herein, and discussed what was proposed. The applicants lodged an objection to the application. Planning permission was granted subject to a condition and the applicants were content therewith.
The Keoghs decided not to develop the site themselves but rather to sell it with the benefit of planning permission. The site was not publicly advertised, no "for sale" sign was erected and negotiations, which concluded on December 10th, 2003, were conducted through a firm of auctioneers. A contract for sale was executed in trust for the purchaser on December 19th, 2003. The contract did not disclose the identity of the purchaser. Among the special conditions in the contract was one at paragraph 8, whereby the Keoghs agreed that no objection would be made by or on behalf of them as vendors to any proposed development by the purchaser on the site. This clause was handwritten and replaced a typed one which provided for a way-leave agreement in respect of a single dwelling only. Mr Justice Peart was of the view that it was clear from the original clause that the Keoghs envisaged only one house was to be constructed, but that some discussion must have taken place which resulted in the replacement clause. However, there was no evidence that the Keoghs were aware at that time of the purchasers' intention to apply for permission to erect two houses on the site.
On December 19th, 2003, (the date the contract was signed), the first named notice party, who with Garry Doyle was the purchaser of the site, lodged an application to erect two houses on the site. The application was signed by the second named notice party, a brother of the first named notice party and the consulting engineer who prepared the plans and the application for planning permission. Mr Justice Peart said it was clear that everything was in readiness as far as the new application for planning permission was concerned prior to the actual execution of the contract and a notice appeared in the Evening Herald on December 19th, 2003. The respondent received no objections to the application for permission and notified the first named notice party of its decision to grant permission for the erection of two house on the site, by notice dated February 18th, 2004. The permission was subject to 15 conditions, four of which related to financial contributions to be made to the respondent in respect of the cost of providing roads, water and sewerage, recycling facilities, recreation and amenity, facilitating the site development. These contributions were required to be made "before development commences".
No appeal was lodged within the four-week appeal period. Work commenced on the site on March 18th, 2004 - in other words immediately after the expiration of the appeal period but prior to any granting of permission issued on foot of the decision, the service of a commencement notice or the making of any financial contributions. The works did not go unnoticed by those in the neighbourhood but it was initially assumed that the development was as per the initial planning permission obtained by the Keoghs.
Mr Keogh saw a notice on a notice board in the planning office in Arklow on March 18th, 2004, indicating that permission had been granted for two houses on the site. He was surprised, as he didn't recall seeing a site notice. Mr Keogh made further inquiries of officials and it was confirmed to him that no inspection of the site had taken place within the five-week period from the date of the application, to enable it to be confirmed whether during that period a site notice had been in place. A planning technician with the respondent, Mr Sean Dunne inspected the site on February 4th, 2004, and completed a form headed "Arklow Town Council - Inspection of 'site notice' in accordance with article 17(1)(b) of Planning Regulations". The form contained four boxes relating to whether there was a site notice present at the site, when it was inspected, whether it was legible, easy to see, sufficient and in compliance with article 17(1)(b) of the Regulations. Underneath said boxes were the words "Yes/No". Mr Dunne inserted an "X" in each box on the form, rather than the word "Yes" or "No". He intended the "X" to mean no but the official examining the file for the purpose of the decision to grant permission read it as meaning "Yes". Mr Justice Peart stated that if the site notice was erected on December 19th, 2003, the five-week period during which it must remain would expire on January 23rd, 2004, whereas the inspection was made on February 4th, 2004, by which time there was no longer any requirement to have the notice in place. Mr David Dempsey,the engineer and brother of the first named notice party, gave evidence that he personally attended at the site on the day the five-week notice period expired and took down the site notice and put it and the post into his jeep. He did not keep the site notice.
The Keoghs informed their neighbours about the fact that the new owners had been granted permission for the erection of two houses on the site, being of the view that the development was too large for the site and being concerned that those affected had no opportunity to lodge objections, no site notice being in place.
Mr Justice Peart stated that on March 24th, 2004, the neighbourhood became galvanised into action. Mr Coates met two people who made a remark about the two houses being built. He went to the planning office the following day to inquire as to how there could be permission in the absence of a site notice. He was told the matter of the site notice was being investigated. Mr Dempsey contacted Mr Coates to discuss the matter of a boundary wall between the site and Mr Coates's house and apparently indicated that no windows would overlook Mr Coates's house. Mr Coates said there was no way he would not have spotted a site notice as he walks past the site several times a day and if he had seen one he would have lodged and objection and even an appeal. Mr Coates also spoke to the applicants. Other neighbours had sworn affidavits saying they passed the site on foot regularly and never saw any notice at the site. Under cross-examination they denied the possibility of one being there otherwise they would have seen it and they also denied seeing the notice in the Evening Herald on December 19th, 2003.
On March 25th, 2004, the respondent sent a warning letter pursuant to section 152 of the Planning and Development Act 2000 to Mr Dempsey stating that the work had commenced without compliance with the conditions in the planning permission and calling upon him to cease all works. Mr Dempsey responded by letter dated March 31st, 2004, and enclosed a part payment of €10,000, proposing to make further payments in the following months and also enclosing revised drawings relating to footpath layout and showing the location of sewerage connections and manholes. He stated that he hoped what was supplied was sufficient to comply with requirements and would expect to commence works again as soon as possible. Mr Dempsey, in his affidavit, said that the commencement notice was served ahead of actual commencement but Mr Justice Peart stated that appeared to be incorrect. Mr Dempsey stated in cross-examination that it was normal enough in his experience for works to commence ahead of making the financial contributions and even the commencement notice. He felt the council took a lenient approach to such matters.
The Marshalls, Keoghs and Mr Coates sought legal advice at the end of March, 2003, and a letter was written to the respondents on April 5th, 2004, which referred to the problem about the site notice, commencement of building ahead of compliance with statutory requirements and, per Mr Justice Peart, presumably it also referred to the absence of a commencement notice, failure to make financial contributions, and that a final grant of permission had not issued following the appeal period.
Mr Justice Peart was of the view that significant work was done on the site thereafter as by the time the application for judicial review was prepared photographs show significant block-work in place in relation to both houses. Proceedings commenced on April 28th, 2004, by filing of a Notice of Motion dated April 26th, 2004. Mr Justice Peart ruled on the question of an extension of time and granted same. On May 20th, 2004, the respondent served an enforcement notice requiring the first named notice party to "cease the unauthorised use (buildings under construction)" at the site and "to remove the unauthorised structure within four weeks of the date of this notice". Work ceased.
Mr Justice Peart stated that the conflict of evidence as to the existence or non-existence of the site notice was impossible to reconcile and it was therefore impossible for the court to determine that factual issue with absolute certainty. He said that all the court could do with certainty was state that it accepts completely the fact that even if the site notice was in place for the full five-week period following December 19th, 2003, none of the persons who have given evidence saw it.
Mr Justice Peart said that a court might endeavour to stretch to an inference that, if as it accepts to be the case none of these persons saw the notice despite passing by it frequently on foot and being interested in such matters, then it must follow while the notice may have been placed on a post and the post driven into the ground, it cannot have been in such a way or a conspicuous position "so as to be easily visible and legible by persons using the road", as is mandated by article 19(1)(c) of the Regulations.
It being impossible to reconcile the two conflicting accounts as to the existence or non-existence of the site notice Mr Justice Peart decided to base his decision not on an acceptance or rejection of the evidence heard but on the basis of whether the process by which the decision of the respondent dated February 18th, 2004, was arrived at in accordance with the statutory and regulatory framework.
Mr Justice Peart said that if it was not, then the decision was one which lacked legality and must be quashed. Mr Justice Peart stated that it was beyond any dispute that the planning authority did not during the five-week period concerned carry out any inspection of the site which enabled them to be satisfied that the site notice was in place and that it conformed to the regulations as that fact was admitted. On February 4th, 2004, 12 days after the five-week period expired, the site notice was not in place and that was reported to the appropriate office in the respondent who misinterpreted same. Mr Justice Peart then referred to Mr Dunne's statement that inspections were carried out on a random basis with between 80 per cent and 90 per cent of the sites being inspected. Thus Mr Justice Peart concluded that with 10 per cent or 20 per cent of sites not being inspected there was a possibility of the absence of a site notice not being spotted before an application was granted, and thus those whose interests are protected by the requirement to erect a site notice received no protection.
Mr Justice Peart then referred to the requirement to place a notice in a newspaper per Article 17(1)(a) of the Regulations. He stated for that to be even a reasonable method of protecting the interest of persons likely to be affected it would be necessary for them to purchase each day a copy of each newspaper in which a notice might be placed. Mr Justice Peart was of the view that it was in order to give added protection that the legislature introduced the additional safeguard of requiring a site notice be erected in a conspicuous manner at the proposed site and that it was a very important requirement serving a vital purpose, the Regulations reflecting the importance attached to the right of affected persons to be on notice of an intended application. Firstly Article 17(1) requires the applicant to give notice in a newspaper and by the erection of a site notice. These notices must conform to strictly defined specifications as to clarity, visibility and content per Article 18 in respect of the newspaper notice and Article 19 (a), (b) and (c) in respect of the site notice. Mr Justice Peart then referred to Article 19(3), which provides that where the planning authority considers that a single site notice at a site is insufficient or "does not adequately inform the public" the authority may require further steps to be taken as set forth therein. Article 20 states that the site notice must be in place and maintained for a period of five weeks from the date of the receipt of the planning application by the planning authority. Mr Justice Peart stated that is a lengthy period from which the importance of the site notice might be gleaned.
Mr Justice Peart then referred to Article 26, which gave planning authorities certain powers and imposed certain duties on them in respect of planning applications. It sets out what should happen on receipt of an application: - (1) that same should be stamped with the date of receipt, (2) that the authority should at that stage consider whether there is compliance with the requirements as to content of the newspaper notice (Article 18); whether the copy site notice conforms with Form No. 1 of Schedule 3 of the Regulations (Article19(1)(a)), and whether the documentation complies with article 22 and possibly Articles 24 or 25. Once the authority is satisfied that the documents comply with the requirements it is mandated by Article 26(2) to send a receipt to the applicant. On the other hand where the authority considers any of the requirements are not complied with it is provided that the application "shall be invalid".
Mr Justice Peart stated that importantly for this case Article 26(4) then provided that where on inspection of the land the planning authority considers that the requirements of Article 17(1)(b) or 19 (erection of appropriate site notice, as opposed to maintenance of same for five weeks to which Article 20 refers), have not been complied with, the application "shall be invalid" notwithstanding that it has been acknowledged pursuant to Article 26(2). It is only where the authority is satisfied that the reason for the non-existence of the site notice on the date in question is due to malicious defacing or destruction that the provisions of Article 26(3) or(4) shall not apply.
Mr Justice Peart highlighted the care taken to create a structured procedure for dealing with planning applications with each step being clearly set out. Mr Justice Peart stated that it was clearly envisaged that the planning authority shall, (not may or shall to the best of its ability or shall as far as may be practicable) on inspection of the land consider whether the requirements of the regulations, as far as the site notice is concerned, have been complied with and stated that the only matter left in some doubt was how the authority ought to ensure that the notice was maintained for the five-week period and not just the date of inspection.
Mr Justice Peart was of the view that there was no room whatsoever to conclude that, because that matter is not clearly spelt out, there is no obligation as such to carry out an inspection at all within that five-week period. Mr Justice Peart said the intention was clear from the wording of the Regulations themselves and the particular provisions to which he had referred. Mr Justice Peart stated that if no inspection is carried out within that five-week period then the decision subsequently contains a legal infirmity and must be quashed, since there has been no compliance with the provisions of section 34(1) of the 2000 Act which provides that where an application is made to a planning authority in accordance with permission regulations for permission for the development of land and all requirements of the regulations are complied with, the authority may decide to grant the permission subject to or without conditions or to refuse it.
Mr Justice Peart stated that in the instant case "all requirements of the regulations" had not been complied with and thus the interests intended and sought, to be protected, by the existence of those regulations, had not been protected by the planning authority. The consequence of non-compliance with Article 26(4) was that the application "shall be invalid". Mr Justice Peart stated that since all the regulations were not complied with, the application for permission was invalid and therefore the respondent had no power to make the decision to grant planning permission dated February 18th, 2004, and he therefore granted the relief sought.
Solicitors: O'Doherty Warren & Associates (Wexford) for the applicant; C.J. Louth & Son (Arklow) for the respondent; Tarrant & Tarrant (Arklow) for the notice parties.