Judgment: 2005-11-29 · Court archive

High Court rejects default permission claim over Kildare housing scheme

The court held that a late request for further information was invalid, but found the application could not receive permission by default because it was open for consideration under the development plan.

The High Court · [2005] IEHC 480

Who, what, where, when and why

Who
  • Abbeydrive Developments Limited (Applicant)
  • Kildare County Council (Respondent)
  • Roderick Murphy (Judge)
What

The court held that a late request for further information was invalid, but found the application could not receive permission by default because it was open for consideration under the development plan.

Where

Places mentioned in the report

  • Ballymore Eustace West / Broadleas Commons
  • Ballymore Eustace
  • Ballymore Eustace West
  • Broadleas Commons
  • Kildare
When

Judgment:

Why

Reasons reported in the judgment

The High Court rejected Abbeydrive Developments Limited’s application for judicial review seeking recognition of a default planning permission for a proposed housing and community facilities scheme at Ballymore Eustace West / Broadleas Commons, County Kildare.

The High Court rejected Abbeydrive Developments Limited’s application for judicial review seeking recognition of a default planning permission for a proposed housing and community facilities scheme at Ballymore Eustace West / Broadleas Commons, County Kildare.

In a judgment dated 29 November 2005, Mr Justice Roderick Murphy found that Kildare County Council’s request for further information had been issued outside the statutory eight-week period and was invalid. The application had been received on 3 December 2002, and the court calculated that the eight-week period expired on 5 February 2003. The council sent its request on 6 February; its counsel accepted that it was late by one day.

That did not resolve the case in the developer’s favour. The court considered whether the application could be granted by default despite the planning issues raised by the council. The proposed seven-year, phased development included housing as well as a crèche, neighbourhood shops, a medical centre and apartments. The parties disputed whether the community facilities were consistent with the applicable development plans and whether the application amounted to a material contravention.

The judge distinguished an application that materially contravenes a development plan from one that is permitted under it. He also considered an intermediate category: an application that the planning authority could consider, but had not assessed for consistency with proper planning and development. He concluded that the application fell into that category. Because it was not within the development plan, the statutory default permission could not arise.

The court also considered alleged technical defects in the application documents, including the site boundary marking, drawing details and north points. It said those matters did not invalidate the application, noting the council did not press them. That conclusion did not establish entitlement to permission by default.

The developer had sought declarations that permission was deemed granted on 5 February 2003 and that the council’s information request was invalid, as well as an order directing the council to grant permission if necessary. The court refused the relief sought. It did not grant planning permission or direct the council to do so.

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