Marshall & Anor v. Arklow Town Council

Factual and Procedural Background

This judicial review concerns a decision by a local planning authority to grant permission for the erection of two houses on a site located on a lane near a small rural neighbourhood in The City, The State. The applicants, residents in the neighbourhood, challenged the decision on the grounds that a statutory site notice, required to be erected and maintained under planning regulations, was not properly displayed for the mandatory five-week period.

Initially, the previous owners of the site (referred to as the Vendors) had obtained planning permission for a single dwelling and had consulted neighbours, including the applicants, who had lodged an objection but were satisfied with the conditions attached to that permission. Subsequently, the Vendors sold the site to new purchasers who applied for permission to erect two houses without publicly advertising the sale or further consulting neighbours.

The new purchasers lodged the application on the same day as the contract for sale was executed in trust. A site notice was purportedly erected and a newspaper notice published on the day of the application. No objections were received during the statutory appeal period, and the planning authority decided to grant permission with conditions relating to financial contributions before development commenced.

Work began immediately after the appeal period expired but before the final grant of permission was issued, before financial contributions were made, and without service of a commencement notice. Neighbours became aware of the two-house development only after work commenced and raised concerns about the absence of a site notice and the lack of opportunity to object.

The planning authority admitted it did not inspect the site within the five-week period to verify the presence and maintenance of the site notice, as required by the Planning and Development Regulations. The inspection carried out after the five-week period found no site notice in place. A misinterpretation of an inspection form led officials to believe the site notice had been present during the required period.

The applicants, supported by neighbours and previous owners, sought judicial review challenging the validity of the planning permission on the basis of non-compliance with statutory site notice requirements and failure of the planning authority to fulfill its inspection obligations.

Legal Issues Presented

1. Whether a site notice was duly erected and maintained at the site for the required five-week period in accordance with Articles 17(1)(b), 19, and 20 of the Planning and Development Regulations, 2001.
2. Whether the planning authority’s failure to inspect the site within the five-week period to confirm the presence of the site notice constitutes a breach of statutory obligations sufficient to invalidate the decision to grant planning permission.
3. Whether the planning application is invalid due to non-compliance with the statutory requirements and regulations governing site notices and inspections.

Arguments of the Parties

Applicants' Arguments

• The applicants contended that no site notice was erected or maintained for the mandatory five-week period, supported by testimony from numerous neighbours who regularly passed the site and never saw any such notice.
• They argued that the planning authority’s failure to inspect the site within the statutory period deprived them of their right to be informed and to object, rendering the decision invalid.
• They highlighted inaccuracies and inconsistencies in the affidavit evidence of the developers’ representative regarding the erection and maintenance of the site notice.
• They submitted that the obligation on the planning authority to inspect the site is absolute and cannot be fulfilled on a random or discretionary basis.
• The applicants rejected any claim of prejudice by the developers arising from halting construction, noting that work had commenced prematurely and without proper compliance.

Respondent's Arguments

• The respondent maintained that the existence of a site notice was a factual matter for the court to decide, referring to evidence supporting the erection of the notice.
• It was submitted that the obligation to inspect the site is not absolute but conditional, and that the authority may rely on the presumption of compliance in the absence of evidence to the contrary.
• The respondent argued that the planning authority’s duty was to ensure the application was accompanied by a copy of the site notice and newspaper notice, not to guarantee the notice’s physical presence at all times.
• The respondent suggested that the neighbours’ objections were instigated by the previous owners who were contractually bound not to object.

Notice Parties' Arguments

• The Notice Parties adopted the respondent’s submissions and argued that the planning authority’s obligations do not extend to site inspections to ensure compliance with site notice requirements.
• They contended that the authority may reasonably rely on the applicant’s compliance and that an absolute inspection obligation would be impractical.
• They acknowledged that commencing work before compliance with conditions and commencement notice was not ideal but argued these were matters between the authority and developers, irrelevant to the applicants’ challenge.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the irreconcilable conflict in evidence regarding whether the site notice was properly erected and maintained. While the developers’ representative and a co-owner attested to the erection and maintenance of the notice, numerous neighbours testified that they never saw it despite frequent passage by the site.

The court found that even if the notice was physically present, it was not displayed in a manner conspicuous and legible as required by Article 19(1)(c) of the Regulations. The absence of the notice at the time of inspection after the five-week period and the admitted failure of the planning authority to inspect the site within that period were critical.

The court emphasized the statutory framework requiring a site notice to be erected and maintained for five weeks and the planning authority’s obligation under Article 26(4) to inspect the site within that period. The absence of such an inspection deprived the planning authority of the ability to properly consider compliance, rendering the application invalid.

The court rejected arguments that the inspection obligation could be fulfilled on a random or discretionary basis, holding that the statutory language mandates an inspection to ensure compliance. The failure to do so constituted non-compliance with the Planning and Development Regulations and the Planning and Development Act 2000.

Accordingly, the decision to grant planning permission lacked legality due to the invalidity of the underlying application.

Holding and Implications

The court held that the planning application was invalid due to the failure to comply with statutory requirements concerning the erection and maintenance of the site notice and the failure of the planning authority to inspect the site within the prescribed five-week period.

The decision to grant planning permission dated 18 February 2004 was quashed.

The direct effect of this ruling is to invalidate the planning permission for the erection of two houses on the site. No broader precedent was established beyond the immediate facts, but the judgment underscores the importance of compliance with procedural safeguards in planning applications, particularly the obligation on planning authorities to inspect sites within statutory timeframes to verify compliance with site notice requirements.