Irish Times Thursday, July 23, 2009
Ballymore Eustace scheme cleared in court to go ahead
THE SUPREME Court has cleared the way for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare.
The five-judge court yesterday upheld arguments by Abbeydrive Developments Ltd that it was entitled to a default planning permission for the proposed development because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.
Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.
Abbeydrive argued in the High Court that the council’s failure to decide within the eight-week period entitled it to default permission but Mr Justice Roderick Murphy rejected that argument.
Abbeydrive appealed that 2005 judgment to the Supreme Court which yesterday allowed the appeal. It adjourned the issue of what order should be made in the case.
Mr Justice Nial Fennelly said the dispute in the appeal arose from the nature of the proposed development. While almost entirely residential, it also included a very small two-storey community facility comprising a creche, neighbourhood shops and a medical centre. That facility represented some 0.2 per cent of the total floor area of the proposed development.
The judge noted the relevant zoning area in the Co Kildare development plan 1999 was described as “solely residential” but the council’s senior planner had accepted this proposed development was “open for consideration”. The judge said Article 34.8 of the Planning Act 2000 provided a default that permission could be granted where a planning authority had failed to make a decision within eight weeks.
Mr Justice Fennelly ruled that the High Court had erred as a valid permission could have been granted through an exercise of discretion by the council in favour of Abbeydrive. It was not open to the High Court to impose a limitation on the effect of Article 34.8, except on the basis of legal power.
The Ballymore Eustace Trout and Salmon Anglers’ Association on the 31st July 2009 wrote to the Kildare County Manager asking what notice Kildare County Council will serve on the Association in order to allow the Association to exercise its appeal of the default planning permission to An Bord Pleanala. We were informed by Kildare County Council that there is no appeal process. Despite this, the TSAA lodged an appeal dated 12th August 2009 to An Bord Pleanala. The Association were notified by An Bord Pleanala by letter dated 9th September 2009 that “Section 37(1)(d) of the 2000 Act provides that ythe appropriate period for the making of an appeal means the period of four weeks beginning on the day of the decision by the planning authority.
In this case the decision of the planning authority was on 5th February 2003, and the last day for receipt of an appeal was 14th March 2003. However, your appeal was received by the Board on 13th August 2009 and it is regretted that it must, therefore, be regarded as invalid—”
An Taisce also lodged an appeal with An Bord Pleanala and their appeal was also regarded as invalid. They informed the TSAA on the 15th September 2009 that they were taking legal advice on the matter. An Taisce later told us that they would “involve you in any discussion with lawyers on a “without prejudice” basis.”
The case was up before the Supreme Court on Monday 19th October 2009 and was adjourned to consider further written pleadings on what should be the date of and form of any order for a default permission. An Taisce got the right to plead and informed the TSAA (19/10/09) that they will be sending in a written submission. They recommended that the Association should seek the same. The Association replied, also on the 19th October 2009, asking if we could use the An Taisce solicitor and also the likely cost of same. An Taisce replied that the cost would be substantial and that they were preparing an affidavit to present to the Supreme Court.
The Association then sent the following letter to the Chief Justice.
Ballymore Eustace Trout and Salmon Anglers’ Association
Broadleas,
Ballymore Eustace,
Co. Kildare.
4th November 2009
The Hon. Mr. Chief Justice John L. Murray
Supreme Court,
Four Courts,
Inns Quay,
Dublin 7.
Re: The Supreme Court
Record Number: 091/2008
Between:
Abbeydrive Developments Limited
Applicant / Appellant
– and –
Kildare County Council
Respondent
Dear Mr. Chief Justice Murray,
On the 22nd July 2009 the Supreme Court upheld arguments by Abbeydrive
Developments Limited that it was entitled to a default planning permission for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare, (planning ref; 02/2308) because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.
On hearing the Supreme Court decision, the Ballymore Eustace Trout and Salmon Anglers’ Association by letter dated 31st July 2009 (Appendix 1) asked the planning authority Kildare County Council what noticed it would serve on the Association in order to implement our right to appeal the default planning permission to An Bord Pleanala. Kildare County Council replied by letter dated 5th August 2009 (Appendix 1) that there was no appeal process. The Association felt aggrieved at this response as the Kildare County Council website informed us that the planning application Ref No. 02/2308 was deemed withdrawn due to a lack of response by Abbeydrive Developments Limited, within the specified time period, to a request by the Planning Authority for further information.
The Ballymore Eustace Trout and Salmon Anglers’ Association dated 12th August 2009 appealed the default planning permission to An Bord Pleanala. An Bord Pleanala returned our appeal with an accompanying letter dated 9th September 2009 (Appendix 2) stating that the decision of the planning authority was on 5th February 2003 and that our appeal was not made within the period specified for making the appeal. The Association is at a loss to understand how the decision of the planning authority can be put down as on the 5th February 2003.
The Ballymore Eustace Trout and Salmon Anglers’ Association are not in
a position to incur or be exposed to legal costs. However the Ballymore Eustace Trout and Salmon Anglers’ Association respectfully requests the Supreme Court to address and confirm our entitlement to appeal to An Bord Pleanala.
Thanking you.
Yours truly,
Thomas Deegan
Honorary Treasurer
Similar correspondence has been sent to The Hon. Mrs. Justice Susan Denham.”
The Private Secretary to the Chief Justice replied by letter dated 6th November 2009.
“I refer to your letter of the 4th inst.,addressed to the Chief Justice and similar correspondence which has been sent to the Hon. Mrs Justice Susan Denham.
I am requested to point out that neither the Chief Justice nor members of the Court can enter into correspondence concerning previous decisions of the Court. The function of the Court is to hear appeals brought before it in accordance with law. The Supreme Court has no function in relation to the giving of legal advice. Regrettably therefore it would be inappropriate to respond to your request.
Yours sincerely”
The case was up before the Supreme Court on the 18th February 2010 and the following article from the Irish Times snyopsises the Court proceeding.
“The Irish Times – Friday, February 19, 2010
Court puts development for Ballymore Eustace on hold
MARY CAROLAN
THE SUPREME Court has upheld arguments by An Taisce that the question of whether a housing and retail development at Ballymore Eustace, Co Kildare, should be put on hold until the High Court determines a key issue in the case. The five-judge court yesterday found “exceptional and unusual circumstances” required the court to revisit its own declaration last year that Abbeydrive Developments Ltd is entitled to default planning permission for its proposed development of houses, shops, a creche and a medical centre at Ballymore Eustace.
That decision is now on hold pending a future High Court decision, and a possible Supreme Court decision on appeal, as to whether a default permission may be legally granted in the absence of an environmental impact assessment as required by a European directive.
The 2009 Supreme Court declaration, upholding a 2005 High Court decision, was granted on grounds of Kildare County Council’s failure to make a decision on Abbeydrive’s planning application within the eight-week period set down by law.
Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.
The Supreme Court granted its declaration in July 2009 but had not made final orders in the case because An Taisce raised concerns.
An Taisce, which was incorrectly told by the council in 2007 the planning application was deemed withdrawn and was unaware of the legal action until it read a newspaper report in July 2009, raised concerns a default permission in the circumstances of the case was contrary to European law. An Taisce argued the proposed development, because it was subject to the requirements of a 1985 European directive relating to Environmental Impact Assessments, could not be the subject of a default permission.
It said a valid permission could not have been given because of the council’s failure to assess the EIS submitted by Abbeydrive.”
An Taisce won its case. The default planning permission is now void. Abbeydrive are in liquidation but have sold the site on to another developer, so keep an eye out for the next planning application.