Swords Cloghran Properties Limited (applicant) v. Fingal County Council (respondent)
Judicial review - Planning and development - Decision of the respondent to refuse planning permission for a development - Subsequent planning application for a revised development - Applicant then lodged an appeal to An Bord Pleanála against initial refusal - Respondent determined it could not consider "revised application" because of appeal lodged against the refusal of the initial planning application - Whether revised application was an application for the same development as the previous application - Whether in refusing to consider the "revised application" the respondent acted ultra vires and/or without or in excess of jurisdiction - Whether an appeal to An Bord Pleanála must necessarily have predated an application for planning permission for the same development - Planning and Development Act 2000 (No. 30), ss. 34(8), 34(9), 37(5), 133, 138.
The High Court (Mr Justice Herbert); judgment delivered on June 29th 2006
A narrow and strict constructionist interpretation of s.37(5)(a) of the Act of 2000 would be to defeat the manifest intention of the Oireachtas in enacting that paragraph. The purpose of the legislature was to assert the primacy of the decision of An Bord Pleanála as the appellate body and to prevent the altogether inappropriate circumstance of the same issues being simultaneously considered by the planning authority and by An Bord Pleanála with the unacceptable possibility of divergent conclusions. Such a situation would bring the extremely important planning process into inevitable disrepute and undermine public trust and confidence in it.
The High Court so held in dismissing the application for judicial review.
James Macken SC and Declan McGrath BL for the applicant; Patrick Butler SC and John Doherty BL for the respondent
Mr Justice Herbert commenced his judgment by outlining the facts of the case. On December 22nd, 2004, the applicant made an application to the respondent seeking a grant of planning permission for:-
A 3 to 4 storey, 100-bedroom hotel with a 200-seat restaurant, bar, conference facilities and parking space for 181 cars, and, a three-level park and ride facility, with 2,038 parking spaces, a bus and ticket station, a service block and a cafe, 24 all-weather "five-a-side" playing pitches and a clubhouse.
On February 24th, 2005, the respondent made a decision refusing planning permission for this development. On March 21st, 2005, the applicant made what was described as "a planning application for a revised development", for:-
A similarly described hotel but with 272 rather than 181 car parking spaces, and, six all-weather tennis courts, five all-weather "five-a-side" playing pitches, one all-weather hockey pitch, 58 car parking spaces an 625 square metre sports administration centre, (including a 70 metre shop).
With this "revised application" the applicant furnished an opinion from senior counsel that it was not in breach of the provisions of s. 37(5)(a) of the 2000 Act. On March 22nd, 2005, the applicant lodged an appeal to An Bord Pleanála against the decision of the respondent of February 24th, 2005, refusing the initial application for planning permission.
On April 19th, 2005, the respondent determined that it could not consider the "revised application" of March 21st, 2005, because of the appeal lodged with An Bord Pleanála on March 22nd, 2005, against the refusal of the initial planning application, and returned the application papers to the applicant. On May 12th the applicant returned the application of March 21st, 2005, to the respondent and insisted that the respondent make a determination either to grant or refuse planning permission on or before June 2nd, 2005. On May 16th, 2005, the respondent again returned the application stating that it could not consider the application in the circumstances. A memorandum from an officer of the respondent regarding compliance with s.37(5) of the Act of 2000 was exhibited in affidavit evidence. It stated, inter alia, that "the [ subsequent] proposal is substantially the same as the [ initial] which is currently on appeal to An Bord Pleanála . . . I consider that we cannot pre-empt [ the board's decision] by accepting the [ subsequent] proposal . . . I would advise that the proposal is the same under the meaning of s.37(5) of the Act, and recommend that the application be returned to the applicant until such time as a decision of An Bord Pleanála on the [ initial] proposal is forthcoming". Mr Justice Herbert said that by order of the High Court on July 29th, 2005, the applicant was granted leave to seek, inter alia, an order of certiorari, by way of judicial review quashing the decision of the respondent made on or about April 19th, 2005, that the subsequent application for permission submitted by the applicant was an application for the same development of the same description as the previous application.
At the hearing Mr Justice Herbert noted that counsel for the applicant submitted that the respondent had erred in law in concluding that the provisions of s.37(5)(a) of the Act applied to the application for planning permission "made, received and registered on March 21st, 2005". He argued that what is prohibited by that subsection is the making of an application for planning permission for the same development or for development of the same description which is the subject of an undetermined appeal to An Bord Pleanála on the date on which the application is made. Counsel also submitted that the development proposed in the planning applications made on March 21st, 2005, was intentionally and significantly different to that made on December 22nd, 2004. The second application for planning permission to the respondent was made on March 21st, 2005, and that the appeal against the refusal of the first application was not made until March 22nd, 2005, and therefore s.37(5)(a) of the Act did not apply as there was no appeal to An Bord Pleanála in existence at the time the second application was made.
Counsel for the applicant further submitted that s.37(5)(c) of the Act, which provides that a dispute as to whether or not an application for planning permission is the same development or is for development of the same description as an application for permission which is the subject of an appeal to An Bord Pleanála, may be referred to An Bord Pleanála for determination, did not operate to deprive the applicant of the relief sought.
Counsel for the respondent accepted that the respondent had concluded that the application of March 21st, 2005, was for the "same development". Counsel submitted that instead of seeking to have the matter resolved by means of a reference to An Bord Pleanála, the applicant had waited until the eight-week period allowed by statute to the respondent to determine the application had expired before taking any step to address the issue. Counsel for the respondent further submitted that s.37(5)(a) of the Act must be given a purposive interpretation. The mischief which the legislature intended to prevent by enacting the subsection was the simultaneous existence before the planning authority and An Bord Pleanála of applications in respect of the same description with the possibility of different outcomes thereby bringing the planning legislation into disrepute and undermining the appellate status of An Bord Pleanála. Therefore he submitted that the respondent was correct and acted intra vires in declining to consider the application and in returning to the applicant all the documents furnished with the application made on March 21st, 2005, on the respondent becoming aware of the appeal lodged by the applicant with An Bord Pleanála on March 22nd, 2005, against the refusal of the planning application made on December 22nd, 2004. Counsel further submitted that even if the respondent should be held to have been in error in declining to consider and decide the application of March 21st, 2005, it was still a "decision" and as there was no express provisions in the 2000 Act to the contrary, accordingly even if the refusal to consider the application of March 21st, 2005, was set aside by the court, time did not run so as to entitle the applicant to a planning permission by default and s.34(8)(f) of the Act must be regarded as intended by the legislature to be exhaustive of the circumstances in which a planning permission by default might be obtained.
Section 34(8)(a) and (f) of the 2000 Act provides as follows:-
"(a) Subject to paragraphs (b), (c), (d) and (e) where -
an application is made to a Planning Authority in accordance with the permission regulations for permission under this section, and
Any requirements of those regulations relating to the application are complied with,
(b)A Planning Authority shall make its decision on the application within a period of 8 weeks beginning on the date of receipt by the Planning Authority of the application"
"(f) Where a Planning Authority fails to make a decision within the period specified in paragraph (a),(b),(c),(d) or (e), a decision by the Planning Authority to grant the permission shall be regarded as having been given on the last day of that period".
Section 34(9) of the 2000 Act is in the following terms: -
"Where within the period of 8 weeks beginning on the date of receipt by the Planning Authority of the application, the Applicant for a permission under this section gives to the Planning Authority in writing his or her consent to the extension of the period for making a decision under subsection (8), the period for making a decision under subsection (8), the period for making the decision shall be extended for the period consented to by the Applicant."
"Section 37(5) of the 2000 Act provides as follows:-
"(a) No application for permission for the same development or for the development of the same description as an application for permission for development which is the subject of an appeal to the Board under this section shall be made before -
"The Board has made its decision on the appeal,
"The appeal is withdrawn, or
"The appeal is dismissed by the Board pursuant to s. 133 or 138.
"(b)Where an application for permission referred to in paragraph (a) is made to a Planning Authority, the Planning Authority shall notify the applicant that the application cannot be considered by the Planning Authority and return the application and any other information submitted with the application in accordance with the permission regulations, and any fee paid.
"A dispute as to whether an application for permission is for the same development or is for development of the same description as an application for permission which is the subject of an appeal to the Board may be referred to the Board for determination."
In his judgment, Mr Justice Herbert said that the planning authority did not fail to make a decision in this case within the period of eight weeks beginning on the date of receipt by it of the application for planning permission. The determination by the planning authority on April 19th, 2005, and on May 16th, 2005, that it was precluded from considering the planning application of March 21st, 2005 because of the provisions of s.37(5)(a) of the Act of 2000, was in Mr Justice Herbert's judgment "a decision" for the purposes of s.34(8)(a) of the Act of 2000, whether or not that decision was correct or incorrect. The respondent made a decision that the planning application of March 21st,2005, could not be considered by it on its interpretation of the facts and having regard to the provisions of s.37(5)(a) of the Act of 2000. This was a form of decision specifically provided for by the provisions of s.37(5)(b) of the Act of 2000. In Mr Justice Herbert's judgment, whether that decision was correctly or incorrectly taken it was still a decision taken which it was open to the respondent to take and which was taken within the period permitted by s.34(8)(a) of the Act of 2000. In view of the clear statutory provisions of s.37(5)(a) of the Act of 2000, Mr Justice Herbert found that the "decision" referred to in s.34(8)(a) of the Act was not confined to a determination of an application for planning permission on the merits.
Mr Justice Herbert found that the decision of the respondent to notify the applicant that the application for planning permission of March 21st, 2005, could not be considered by it because it considered that the appeal lodged with An Bord Pleanála on March 22nd, 2005, also by the applicant, was for the "same development" and, that the provisions of s.37(5)(a) of the Act of 2000 therefore applied, was incorrect. Mr Justice Herbert found that the proposed development for which planning permission was sought on March 21st, 2005 was not the "same development" for which planning permission was sought on December 22nd, 2004. It may well have been a "development of the same description" but counsel for the respondent correctly accepted that the basis of the decision by the respondent to apply the provisions of s.37(5)(a) was that it was the "same development", and not that it was a "development of the same description" - a very much wider and more flexible concept.
Mr Justice Herbert noted that these terms were given no definition in the Act of 2000 and found that for an application to be "the same" it must, on a consideration of the facts, be in every material respect an exact repetition of a previous application for planning permission. On the facts of the instant case, Mr Justice Herbert found that this was clearly not the case. There were very significant differences in the scale and design of the sports and vehicle parking facilities and a significant feature of the initial application was abandoned.
Mr Justice Herbert stated that if the dispute between the parties related solely to that issue, having regard to s.37(5)(c) of the Act of 2000, he would have declined to exercise the discretion of the court to grant judicial review. An Bord Pleanála is an independent statutory body uniquely equipped to resolve the essentially factual issue of whether an application for planning permission was for "the same development" or for "development of the same description" as an application for planning permission which was the subject of appeal itself. While the terms of s.37(5)(c) were permissive rather than mandatory, the existence of this alternative remedy would militate strongly and conclusively against the exercise by the court of its discretion in favour of the applicant. Mr Justice Herbert stated that the appropriate remedy would have been for the applicant immediately and, certainly within the period of eight weeks provided by s.34(8)(a), to have sought a ruling from An Bord Pleanála.
Mr Justice Herbert further stated that if this had been the sole issue between the parties he was satisfied that it would have fallen to be resolved in favour of the respondent by the application of the principles set out by the Supreme Court per Denham J. in Stefan v. Minister for Justice [ 2001] 4 I.R. at 217, as further applied by that court in O'Donnell v. Tipperary (South Riding) County Council [ 2005] 2 I.R. 483 at 488, and the principles stated by Costello J. (as he then was), in O'Connor v. Kerry County Council [ 1988] I.L.R.M. 660.
However, the question of "same development" was not the sole issue between the parties. Counsel for the applicant submitted that even if the application of March 21st, 2005, was found to be for the "same development" as the application of December 22nd, 2004, the respondent had still misdirected itself in law in concluding that it could not determine the application by reason of the provisions of s.37(5)(a) of the Act of 2000.
Counsel further submitted that since the appeal of the applicant to An Bord Pleanála was made on March 22nd, 2005, the day following the application of March 21st, 2005, to the respondent, when the latter was made the former was not then the subject of an appeal to An Bord Pleanála.
Counsel argued that the phrase "which is the subject of an appeal to the Board", could reasonably be only interpreted as relating to the situation existing at the moment when the application was made and not at some subsequent date.
Mr Justice Herbert stated that while he was prepared to accept that the issue could not properly be the subject of a reference to An Bord Pleanála pursuant to the provisions of s.37(5)(c) of the Act of 2000, he was unable to agree with the submission.
As a matter of grammar "is" with an active or perfect participle or in a particular context, was capable of connoting former, present and future time and an instant or continuing situation. In Mr Justice Herbert's opinion, the subsection clearly provided that the time before which the application may not be made is:
(1) before the Board has made its decision on the appeal,
(2) before the appeal to the Board is withdrawn, or
(3) before the appeal is dismissed by the Board pursuant to s.133 or s.138 of the Act.
Mr Justice Herbert stated that it identifies the appeal in question as that relating to an application for permission for the same development which is the subject of an appeal to the Board. Mr Justice Herbert stated that he found nothing in the language of the subsection which required that the appeal to An Bord Pleanála must necessarily have predated the application to the planning authority for planning permission for the same development.
Considering the purpose of the subsection in the context of the statute read as a whole, Mr Justice Herbert was satisfied that "is" may properly be read as referring to either an instant or a continuing situation, a situation that is, where the appeal either predates the application for planning permission or is lodged before the application for planning permission has been considered by the planning authority for the purpose of reaching its decision.
If the appeal to An Bord Pleanála is lodged after the application for planning permission, the statute requires at s.37(5)(b)) that the planning authority "shall notify the applicant that the application cannot be considered by the planning authority" and return all documents, information and fees paid by the applicant. Section 37(5)(c) of the Act is capable of applying whether the appeal to An Bord Pleanála is lodged before the application for planning permission to the planning authority or vice versa.
Mr Justice Herbert stated that if there was any ambiguity in the wording of s.37(5)(a) of the Act - and he was satisfied there was none - the court must apply the principles of statutory interpretation. Mr Justice Herbert stated that in his judgment the narrow and strict constructionist interpretation of s.37(5)(a) contended for by the applicant would be to defeat the manifest intention of the Oireachtas in enacting that paragraph. Mr Justice Herbert further stated that he was satisfied that the purpose of the legislature was to assert the primacy of the decision of An Bord Pleanála as the appellate body and to prevent the altogether inappropriate circumstance of the same issues being simultaneously considered by the planning authority and by An Bord Pleanála with the unacceptable possibility of divergent conclusions. Such a situation would bring the extremely important planning process into inevitable disrepute and undermine public trust and confidence in it.
Mr Justice Herbert was satisfied that the restrictive interpretation of the phrase "which is subject to an appeal to the Board" advanced by the applicant was contrary to the grammatical and therefore the literal meaning of s.37(5)(a).
But even if this were not so, it was contrary to the clear intention of the legislature to remedy by means of s.37(5)(a) the previously identified mischief and this was an intention which the court in construing that section was obliged to promote to the greatest possible extent within the limits of its interpretive role.
Mr Justice Herbert concluded by stating that the court therefore dismissed the application.
Solicitors: William Fry (Dublin) for the applicant; Law Agent, Fingal County Council for the respondent
Kieran O'Callaghan, barrister