The Supreme Court ruled that Abbeydrive Developments Limited was entitled to a declaration that planning permission for a residential development in Ballymore Eustace, County Kildare, had been granted by default after Kildare County Council missed the statutory decision deadline.
The judgment, delivered by Mr Justice Fennelly on 22 July 2009, allowed the company’s appeal from a High Court decision that had rejected its claim. The Supreme Court found the council’s alleged defects in the application were de minimis and did not prevent the default permission from arising. It directed that counsel be heard on the form of the order; the judgment did not itself specify that final wording.
Abbeydrive applied for permission on 2 December 2002 to build a substantial housing development. The council acknowledged receipt on 3 December. The eight-week period expired on 5 February 2003, but the council served a request for further information on 6 February, one day late.
The proposed development was almost entirely residential, with a two-storey community building comprising a crèche, neighbourhood shops and a medical centre, as well as two apartments on its second floor. The building accounted for about 0.2% of the proposed development’s total floor area. The site was zoned R2 and R3, both described in the county development plan as “solely residential.”
The council argued that the community facilities made the application one that was “open for consideration” under the development plan and therefore could not take effect by default. The High Court accepted that reasoning. The Supreme Court held that the key issue was whether the council had legal power to grant the permission. It concluded that it did: the facilities had sufficient merit to be considered, leaving the council discretion to grant or refuse permission. The Court said planning judgment on whether the small community-services element fitted the residential zoning belonged to the planning authority or, on appeal, An Bord Pleanála.
The Court confirmed that a default permission could not arise if it would involve a material contravention of the development plan, or if the applicant failed to comply with applicable planning regulations. But it rejected a further restriction for applications requiring positive consideration. The council had identified defects including the site boundary being shown in pink rather than red, missing plan details and drawing-scale issues. On appeal, counsel did not press several points, and the Court treated the remaining alleged non-compliance as de minimis.
The Supreme Court therefore found Abbeydrive entitled to succeed and to an appropriate declaration under section 34(8) of the Planning and Development Act 2000. The judgment did not decide the final form of that declaration.