The Supreme Court has overturned a High Court decision that refused relief to Martin Ryan and Michael Ryan in a dispute over a 2007 planning application for two two-storey houses on Liscannor Road, Lahinch, Co Clare.
In a judgment dated 11 November 2014, Mr Justice John MacMenamin said Clare County Council had failed to decide the application within the statutory eight-week period. Under the law then in force, that failure meant a decision to grant permission was deemed to have been made. The Ryans sought a declaration and an order compelling the Council to issue the formal grant.
The High Court had found their judicial review application was brought within time but refused relief on discretionary grounds. It considered that ordering permission could allow development without proper regard to the Lahinch Local Area Plan. The Ryans appealed the refusal of relief; the time finding was not challenged by them.
The Supreme Court held that the time for seeking mandamus did not begin with the deemed decision. The Ryans first had to demand that the Council issue the grant and receive a refusal. Their solicitors made the demand by letter on 28 August 2007, and the Council’s refusal was communicated in a letter dated 17 September and received on 18 September. The notice of motion was dated 9 November, and leave for judicial review was granted on 19 November. The court concluded the application was within the applicable three-month period and that the demand had not been unreasonably delayed.
The court also rejected the argument that possible inconsistency with the Local Area Plan justified refusing relief. It said courts should not decide planning merits that the legislation left to planning authorities, and noted it was unclear whether the proposal would have conflicted with the local plan. The court recorded that there was no claim of material contravention of the County Development Plan.
Clare County Council and notice parties had also relied on rights under the European Convention on Human Rights. The Supreme Court declined to reinterpret the legislation by adding protections not present in its text, and said no declaration of incompatibility had been sought. It reserved its view on whether the provisions then in force were Convention-incompatible.
The Supreme Court reversed the High Court’s decision on discretion and said it would grant the declaration and mandatory orders sought. The judgment applies the law as it stood at the time of the 2007 application.