Michael McDowell and Niamh Brennan (applicants) v Roscommon County Council (respondent)
Judicial Review - Planning permission - Extension of time - Whether planning authority can take into account compliance with planning permission in determining whether to grant an extension of time - Whether it is permissible to use a statutory power conferred for a particular purpose for some other purpose - Nature of Judicial Review - Local Government (Planning and Development) Act 1982 section 2, section 4 - Planning and Development Act 2000 section 42 - Planning and Development Regulations 2001 (S.I.600/2001)
The High Court (before The President, Mr Justice Finnegan); judgment delivered December 21st, 2004.
The clear wording of section 42 of the Act of 2000 provides that the planning authority is confined to matters specified in s.42 in reaching its decision on whether to grant an extension. Consideration of other matters, fact or circumstances, is ultra vires. The primary object of section 42 of the Act of 2000 is to enable development already commenced, to which a planning permission relates, to be completed. It is not permissible to use a statutory power conferred for a particular purpose for some other purpose.
The High Court so held in deciding that the decision of the respondent to refuse an extension must be quashed.
Paul Gallagher SC and Michael Collins SC with David Barniville BL for the applicants; James O'Reilly SC and Patrick Butler SC with Conleth Bradley BL for the respondent.
The President of the High Court, Mr Justice Finnegan, began by outlining the facts of the case. Planning permission had been granted in respect of certain land in Roscommon on August 30th, 1999. Condition 11 attached to the planning permission provided that the development including the entrance should be carried out in accordance with the elevations and floor plans submitted on December 18th, 1998, and the site layout plan on July 12th, 1999. On April 21st, 1999, a revised site layout drawing was submitted with an elevation to the west and a cross section C-C. This latter showed a cross section through the building in a west/east direction. It also showed levels at three points: the level of the public road (140.0D), finished floor level at ground floor (151.0D) and to the rear of the dwelling (154.0D.) the cross section C-C conflicted with the form of application for planning permission which gave the finished floor level at first floor level as 8.4m above the road. The revised site layout showed the contours of the site and disclosed that the site rose steeply from west to east. On July 12th, 1999, a further revised site layout plan was lodged showing a relocation of the puraflo unit and percolation area but otherwise was identical to that furnished on April 21st, 1999. The applicants purchased the site on June 25th, 2004. As the applicants understood that the planning permission would expire on August 30th, 2004, their architects lodged a commencement notice on May 21st, 2004, giving June 8th, 2004, as the commencement date with the proposed completion date being August 30th, 2004, the date of the expiration of the planning permission.
There are three floor levels in the dwelling for which planning permission was granted. At the lowest level there are three bedrooms, four bathroom and storage areas; having regard to the information furnished to assist in completing the form of application for planning permission this is basement level. At the next level there is the entrance, a living room, dining room, study, conservatory, kitchen and utility area: on the same basis this is the ground floor level. At the upper level there is a bedroom, bathroom and dressing room. In applying for planning permission the architects retained by the applicants were aware of the sensitive nature of the site and it was indicated that that they had taken into account the steep nature of the site. The dwelling was to be largely screened by trees. It was designed as split level to integrate into the slope and natural materials were to be used for the external finishes. The finishes were set out in a specification lodged with the application. On June 21st, 2004, the architects for the applicants wrote to the respondents stating that a contour survey taken of the site indicated that the site was steeper than shown on the previous planning drawings and therefore it was necessary to cut the house further into the slope requiring less fill than was originally indicated on the planning cross section C-C. This approach was consistent with the information given in the application for planning permission, but not with the section C-C in the cross section submitted on April 21st, 1999. The respondents did not reply to this letter.
On August 12th, 2004, the applicants sought an extension of the planning permission, for three months from August 30th, 2004. As of August 12th, ground works had been completed and the basement slab and retaining walls had been constructed. The dwelling itself is of timber frame construction and at the time of the application all pre-production and design tasks had been completed, all materials procured and manufacture had begun. The assistant senior planner inspected the site, and on August 25th wrote to the applicants requesting further information, including the site layout plan of July 12th, 1999. He stated that there was no record of the drawing on file, and without it, it could not be established if the works already carried out were consistent with the planning permission granted. On August 27th, 2004, the applicants furnished the respondents with the site layout plan of July 12th, 2004. Mr Justice Finnegan noted that having received the site layout plan, the respondent did not communicate to the applicants' architects that it had a concern about compliance with the planning permission, nor did they afford the applicants the opportunity to deal with those concerns and the materiality of any non-compliance. On October 4th, 2004, the assistant senior planner reported that the developers were, by their own admission, constructing a dwelling that was significantly different (2.2m lower) than that for which permission was granted. He stated that the question of extension to the duration of the permission did not arise, as the dwelling under construction did not have the benefit of planning permission.
In reaching their decision on the application for the extension it was stated that the development was materially different from that for which permission was granted, that the development under construction was not the development to which the permission related, and that therefore, an extension of time could not be granted. On October 5th, 2004, the respondent communicated the refusal of the extension to the applicant. The reason given was that the dwelling under construction was significantly different from that for which planning permission was given. Mr Justice Finnegan said that it was quite clear that the reason for the refusal was the perception by the respondent, be that correct or incorrect that the dwelling in course of construction was not in compliance with the planning permission the level 3 (the first floor level) being at the level at which level1 (the basement floor level) ought to have been constructed.
Mr Justice Finnegan stated that the issue for determination was whether the planning authority, having concluded that the development being undertaken was not in compliance with the particular planning permission, were entitled to have regard to that conclusion and, on the basis of that conclusion, refuse to extend the duration of the planning permission.
Mr Justice Finnegan considered the relevant legislation. He noted that section 2 of the Local Government (Planning and Development) Act 1982 introduced a provision into the planning code whereby the duration of a planning permission was limited to five years beginning on the date of the grant. He stated that section 4 of the Act conferred upon a planning authority the power to extend that period, and that this section, with minor amendments, was restated in section 42 of the Planning and Development Act 2000. The President noted that there were, however, differences between the two sections. He said that the words "and only if" contained in section 4 of the Act of 1982 do not appear in section 42 of the Act of 2000, and that section 42.1.d of the Act of 2000 set out an additional matter upon which the planning authority must be satisfied. He also found that both the application and the notification of the decision to refuse complied with the Planning and Development Regulations 2001.
Mr Justice Finnegan was referred to three decisions on section 4 of the Act of 1982 which were of assistance in construing section 42 of the Act of 2000. In relation to Section 4(1) of the 1982 Act Gannon J. said in State (McCoy) v. Dun Laoghaire Corporation ILRM 533 that it is expressed in mandatory terms bearing both positive and negative aspects. It confers on the planning authority not merely the power, but rather the obligation, to extend the duration of a planning permission in relation to uncompleted development upon which a developer has embarked. Mr Justice Finnegan found that this was equally true of section 42 of the Act of 2000.
In Littondale Limited v. Wicklow County Council 2 ILRM 519 Laffoy J. held that if the conditions set out in section 4 of the Act of 1982 were complied with, the planning authority must extend the duration of the permission and that consideration of matters other than the conditions set out therein is precluded. The President held that his function was to review the manner in which the decision was arrived at and to determine whether or not that decision accorded with the requirements of section 42 of the Act of 2000.
In the case of Garden Village Construction Company Limited v. Wicklow County Council 1994 3 IR 426. the Supreme Court dealt with the meaning of 'particular permission'. It held there that on an application for an extension of duration, the planning authority could only look at the actual permission which they were being asked to extend. They could not, therefore, look at substantial works carried out pursuant to that permission, but could look at works carried out pursuant to other permissions which benefited the lands the subject matter of the particular permission in question.
Mr Justice Finnegan found against the arguments put forward on a number of grounds. Firstly he was satisfied that the wording of section 42 is clear. Secondly, where a development is being carried out but not in compliance with the relevant permission a planning authority has conferred upon it wide powers pursuant to Part VIII of the 2000 Act. Section 42 is contained with Part III of the Act. The President was satisfied that in refusing the extension of duration in this case the Respondent was seeking to utilise Part III of the 2000 Act for the purposes of Part VIII of the 2000 Act. In this case The President was satisfied that the primary object of section 42 of the 2000 Act is to enable a development already commenced to which a planning permission relates to be completed: it is not permissible to use the section to prevent the completion of a development to which the planning permission relates which the planning authority has concluded does not comply fully with that permission. The true effect of section 42 if that the planning authority must therefore consider the application in that light having regard to the matters enumerated in the section and those matters only. This the planning authority had failed to do by taking into account a matter not specified in the section that is compliance with the planning permission. The approach adopted in the Supreme Court case of White v. Dublin Corporation ILRM 509 was relevant. In that case the court was considering a decision by a planning authority as to whether modification of plans in the course of an application should be renotified. The official dealing with the matter decided that renotification was not necessary as the level of overlooking resulting form the modifications was acceptable. Fennelly J. considered that the planning official had asked himself the wrong question. The President was satisfied that this also occurred in the instant case. He held that it was not the planning authority's function under section 42 of the Act of 2000 to enquire as to whether the development, insofar as it had been completed, was in compliance with planning permission, and on the basis of it's conclusion on that enquiry to decide on the application. Rather, the planning authority is confined to matters specified in section 42 in reaching its decision.
In conclusion, Mr Justice Finnegan was satisfied that the planning authority misconstrued the scope of their function under section 42 of the Act of 2000. They took into account their conclusion that there was non-compliance with the planning permission, and relied upon such non-compliance simpliciter as the reason for their refusal. The President held that this was ultra vires and that the decision to refuse should be quashed.
Solicitors: Michael McInerney and Co (Dublin) for the applicants; Dermot M. McDermot and Co (Roscommon) for the respondent.
Alison de Bruir, Barrister