O�Shea v. Kerry County Council & Ors

Factual and Procedural Background

The Applicant, a widow residing in The City, sought judicial review to quash a planning permission granted by the Respondent, a County Council, on 19 November 2002. The planning permission related to the construction of 29 ancillary holiday homes and the installation of a proprietary treatment system on lands at Greenane, Templenoe. The Applicant challenged the validity of the planning permission on grounds that the Respondent acted ultra vires by granting permission despite non-compliance with statutory site notice requirements under the Local Government (Planning and Development) Regulations, 1994. Specifically, the Applicant contended that the notice party failed to erect and maintain a site notice in a conspicuous and legible position on or near the land adjoining a public road, as required by the Regulations. The Applicant asserted that the site notice was positioned deep within the land, not visible or legible to the public or adjoining landowners, thereby denying her and others the opportunity to make submissions or appeal the planning decision. The Applicant, a neighbouring landowner, also raised issues regarding access rights over a right of way granted by her late son to a third party, which did not permit the scale of development proposed. Affidavits were sworn by the Applicant, her engineer, and solicitor, asserting lack of awareness of the application due to inadequate notice. The notice parties and Respondent disputed these claims, providing affidavits asserting proper notice was given, including erection of site notices in locations agreed with the planning authority, publication of notices in newspapers, and widespread local knowledge of the application.

Legal Issues Presented

1. Whether the grant of planning permission was invalid due to failure to comply with the statutory requirements for erecting and maintaining a site notice under the Local Government (Planning and Development) Regulations, 1994, specifically Articles 14 and 16.
2. Whether the Respondent acted ultra vires by granting planning permission despite alleged non-compliance with site notice requirements.
3. Whether the Applicant has a substantial interest and substantial grounds to seek leave to challenge the planning decision under section 50 of the Planning and Development Act, 2000.
4. Whether the Applicant demonstrated good and sufficient reason for the Court to extend the statutory time limit for bringing judicial review proceedings.

Arguments of the Parties

Applicant's Arguments

• The site notice was not erected in a conspicuous or legible position as required by the 1994 Regulations, being located approximately 23 metres from the nearest boundary and far from any public road, preventing public awareness.
• The Respondent failed to ensure compliance with statutory notice requirements and proceeded unlawfully to grant planning permission.
• The Applicant, as a neighbouring landowner over whose property a right of way exists, had a substantial interest and would have objected and appealed the planning permission if properly notified.
• The Applicant was misled and deceived by the inadequate positioning and nature of the site notice, justifying an extension of the time limit to bring the challenge.
• The notice party’s failure to properly identify itself (use of a dissolved company’s name) further undermines the validity of the planning application and decision.

Respondent's Arguments

• The Respondent acted as a "watchdog" and not as a "bloodhound," fulfilling its role appropriately by relying on the site notices erected and published.
• The site notice was placed at locations agreed with the planning authority, including one at the main road boundary near the golf club entrance, which was clearly visible and maintained for the required period.
• Widespread publicity and consultation occurred, including newspaper notices and availability of plans at the golf club, such that the Applicant’s ignorance was due to her own inadvertence rather than any failure by the Respondent or notice party.
• The Applicant failed to show substantial grounds or a substantial interest under section 50 of the Planning and Development Act, 2000, and did not demonstrate how she was directly affected by the development.
• The Applicant’s delay in bringing proceedings was not justified by good and sufficient reasons, and the Court should refuse leave to extend time.

Notice Party's Arguments

• The notice party contended that site notices were erected in accordance with planning authority advice and statutory requirements, including replacement notices following a clerical error.
• The application received extensive publicity and was widely known locally, undermining claims of inadequate notice.
• The Applicant’s allegations that the notices were positioned to defeat objections were unfounded and vexatious.
• The Applicant’s failure to see the notices was due to her own oversight, not any concealment or deficiency in the notices.
• Granting leave to extend time would cause prejudice to the notice party due to financial commitments and statutory completion deadlines for the development.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering the statutory framework under the Planning and Development Act, 2000, particularly section 50, which requires an applicant seeking leave for judicial review of a planning decision to demonstrate substantial grounds that the decision is invalid and a substantial interest in the matter, as well as good and sufficient reason to extend the time limit for bringing the application if the statutory period has expired.

The Court acknowledged the Applicant's claim that the site notice was not properly erected or maintained in a conspicuous and legible position on or near the land adjoining a public road, as required by Articles 14 and 16 of the 1994 Regulations. It noted that the lands subject to the application did not adjoin a public road, so the notice was required to be visible and legible to persons outside the land or structure.

However, the Court found that while the site notice was placed at a location agreed with planning officers, the Applicant failed to show that the notice was not visible from outside the land or that she was prevented from reading it. The evidence showed conflicting accounts: the Applicant and her witnesses did not see the notices, but the Respondent and notice parties provided credible evidence that notices were erected at the entrance to the golf club and maintained for the requisite period.

The Court further held that the Applicant did not demonstrate a substantial interest as required by section 50 of the Act, given that she did not specify how the development would affect her land or rights beyond a general interest as a neighbouring landowner. The Applicant's claim rested on ignorance of the planning application and a speculative assertion that she would have objected or appealed if aware.

Regarding the delay in bringing proceedings, the Court found no good and sufficient reason to extend time. The Applicant's ignorance was not attributable to any fault by the Respondent or notice parties, and some delay was due to the Applicant's own failure to act promptly after becoming aware of the decision. The misdescription of the notice party’s name was not sufficient to justify the delay.

In light of these findings, the Court concluded that the Applicant failed to satisfy the statutory criteria for leave to challenge the planning decision and for extension of time, and that the alleged technical defects in notice did not amount to substantial grounds for invalidating the decision.

Holding and Implications

The Court REFUSED the Applicant leave to institute judicial review proceedings and denied any extension of the statutory time limit for bringing the challenge.

The direct effect of this decision is that the planning permission granted by the Respondent remains valid and enforceable, and the Applicant is precluded from challenging it on the grounds raised. The Court did not set any new precedent beyond applying established principles regarding statutory requirements for site notices, the burden on applicants to show substantial interest and grounds, and the discretionary nature of extending time limits under section 50 of the Planning and Development Act, 2000.