The High Court refused an adjoining landowner’s application to quash Roscommon County Council’s grant of retention permission, holding that the site notice for the valid application did not have to be on a yellow background.
The judicial review concerned permission granted to Michael Griffin on 8 August 2005 for development involving the raising of land by importing excavated material. The landowner, Ben Kelly, argued that the notice for the application should have been yellow under Article 19(4) of the Planning and Development Regulations 2001, because it followed an earlier application for the same land within six months.
Griffin’s first application, reference 05/011, was declared invalid by the council on 8 March 2005 because the site notice was misleading. A new notice was later erected for application 05/495. It was white, as was a separate notice for a waste permit. Kelly did not notice the replacement notice and made no submission on the later application. He learned of the retention permission after it was granted.
Kelly sought judicial review after the planning board refused him leave to appeal. His counsel argued that the yellow-notice rule was intended to alert interested parties to a subsequent application and that the white notice left Kelly disadvantaged. At the hearing, Kelly abandoned his claim for damages. The parties agreed the issue for the court was whether Article 19(4) required a yellow notice in these circumstances.
Justice McGovern held that the first application, once declared invalid for non-compliance with the regulations, was no longer a “planning application” within the Act’s definition. He concluded that application 05/495 was therefore the first planning application for the purpose of the rule, and that its white notice complied with Article 19(1)(e).
The judge acknowledged that Kelly had good reasons for missing the new notice, but said the statutory remedies would have been available had he or his agent identified it. He also noted that Kelly’s application for leave to appeal had not relied on either of the grounds specified in section 37(6)(d)(i) or (ii). The court refused the relief sought; it did not quash the retention permission.