Irish Environmental Law Association Judgements of the Superior Courts in the period from April 13 th to July 13 th 2010 Niall Handy B.L. Kildare County Council v John Byrne and Maree Byrne, 2009/29CA Judgment of Mr. Justice Ryan, 19 th April 2010 (Unreported) Planning injunction s.160 Planning and Development Act 2000 Alleged Unauthorised Development Appeal of Circuit Court refusal to award relief - Discretion to award relief under s.160 - Whether s.50 PDA 2000 applicable - This case was an appeal of a decision of Judge O Sullivan in the Circuit Court to refuse an application for an enforcement order pursuant to s.160 of the Planning and Development Acts. The Respondents in these proceedings obtained a grant of planning permission from Kildare County Council on 21 st February 2008 for the construction of a four bedroom dwelling house, driveway and effluent treatment system at Prosperous, County Kildare. The notice stated that Kildare County Council have by order dated 21/2/2008 decided to GRANT PERMISSION to the above named for development of land, in accordance with the documents submitted subject to four conditions attached. However instead of the usual conditions, the notification listed four reasons for a refusal of the application, including one which stated that the proposed development would have constituted a material breach of the development plan. The Respondents adopted the position that the notification represented a positive decision to grant permission and accordingly on 28 th March 2008 served a commencement notice on the planning authority including the usual fee, a receipt for which was issued on 4 th April 2008. A formal grant of permission was belatedly issued to the Respondents on 17 th April 2008, again listing the same four reasons for a refusal instead of conditions. 1
By letter dated 14 th May 2008 a senior executive at the council wrote to the respondents explaining that a mistake had been made and that they should have been refused permission. The Respondents replied asserting a valid permission and indicated their intention to proceed. Works subsequently began and following a site investigation on 14 th July 2008, immediate efforts to get the Respondents to cease development were made including an ex parte application to the Circuit Court. The Respondents ultimately undertook to cease all works until the matter was determined. The inspectors report had recommended refusal and subsequent memos all indicated a decision to refuse had been reached, however the Managers Order granted permission, appending the aforementioned reasons for refusal. Submissions were made on behalf of the applicant inter alia that the critical decision was the actual decision taken to refuse permission under s.34 of the Act and not the notification of that decision to the Respondents. Counsel maintained that where a decision to grant in material breach of the development plan existed, a separate procedure had to be followed which did not occur and furthermore, there were no reasons given explaining the decision to grant in material breach, which reason is a requirement under the Act. Submissions for the Respondent contended that an application by way of s.160 could only address unauthorised development and that on these facts the development in question had been formally authorised and therefore the Court had no jurisdiction to grant the enforcement order sought. Counsel for the respondent pointed to the fact that the permission had not been revoked under s.44 and further cited s.50 of the Act contending that it was the relevant provision which should have been invoked to address the mistake. The Court found that the Respondents and their architect waited for the two month (sic) period for judicial review to expire and knowingly took advantage of the Applicant s error. The Court concluded that it was not what was written on a piece of paper [but] a matter of form and substance of the decision. The Respondents 2
were not in fact misled by the decision, they must have known that there was something unusual about this document and the possibility that it had issued in mistake by the County Council. The Court rejected the defendant s contention that the validity of the planning permission could not be addressed in s.160 proceedings. The defendant submitted that the Court had no jurisdiction to award relief on the basis that s.160 of the Planning and Development Act 2000 can only address unauthorised development, but on these facts there had been a grant of permission, the permission had not been formally revoked and therefore the development could not be said to be unauthorised. The Court stated that s.34(8) was the vital preliminary to any notification [to grant permission] and any document and we are really talking about the nature of the decision that was made by the Country Council officials and not what was written on the piece of paper. It seems to me that this is the basic question. My conclusion is that this case concerns form and substance. The County Council relies on the substance and the [defendants] relies on the form. There can only [be] one winner in that debate. Having considered the actual grant of permission of 17 th April 2008 the Court held: I think that the County Council had no capacity to issue a notice saying that a decision had been made to grant [the defendants] permission when in fact no such decision had been actually made. Therefore it follows that the Byrnes do not and did not have planning permission. Dealing with the question of the Court s discretion under s.160, Mr. Justice O Neill stated: I do not really think that any question of discretion arises here. If there was no true permission then the development by the Byrnes is unauthorised 3
development because the only authorised development that can take place is on the basis of a valid grant of planning permission. Addressing the defence submissions that the appropriate way to challenge the validity of a planning permission is via the judicial review mechanism provided for under s.50 of the Act, the Court held against the defendants stating that I do not think that this is a question for the validity of a planning permission: the question as I see it is simply whether there is or is not a valid planning permission in existence in respect of this land. The answer to that is in the negative. It follows necessarily that the development made by the Byrnes on this land in unauthorised development and it is equally irresistible that the Council is entitled to an order in its favour prohibiting any further development. Finally in allowing the appeal and granting the order originally sought by the Council, the Court stated that The net result is that there is no valid permission in existence, notwithstanding the notification of the making of a decision nor indeed the notification of a decision, which are clearly based on a mistake when the precise opposite was decided by the Council officials and what happened was that the wrong notice was sent out. 4
Brooks & Anor. v Sligo County Council & Ors. Decision of McKechnie J., July 2010. Please Note: a written judgment in this case is not yet available; a more comprehensive treatment of the matter will be furnished at a later date following the Court s written judgment. The applicant sought an order of certiorari quashing the decision of the respondent in respect of a grant of planning permission for an extension of the airport at Strandhill, County Sligo, the works for which included the concrete infilling of an area of an SAC. Several parties appealed that grant of permission and An Bord Pleanala convened an oral hearing. The Applicant issued proceedings seeking to review the decision of the planning authority and sought an injunction restraining the continuation of the oral hearing. Upon hearing the application, submissions were made in respect of alleged defects in the grant of permission, including questions raised over the adequacy of the EIS. Two aspects of the case may be of interest to members. Firstly, the Court did not accept submissions that an application for relief by way of Judicial Review was not appropriate in circumstances where a remedy was available by way of the appeal to the Board. Secondly, the Court felt that on the merits it would be appropriate to remit the matter back to the planning authority, a question arose however as to how this could be achieved given the statutory time limits that oblige a planning authority to determine an application within a fixed period of time. By the time the Court s decision was made that time had long since expired and therefore concerns over default permission arose. In the absence of an express statutory power to extend time for the planning authority to decide the matter, the Court refused to remit the matter back to the planning authority and granted an order of certiorari simpliciter. 5