Ryan v Clare Co Co: HC cannot refuse default planning permission order on merit-based planning considerations

planning-permission-advice-forumThe High Court cannot reject a mandamus application for default planning permission on merit-based planning considerations (here).

Background

Section 34 of the Planning Development Act 2000 states:

(8)(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.

(11)(a) Where the planning authority decides under this section to grant a permission-
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal

Ryan applied for planning permission to develop a site in County Clare. The Council did not make a decision on that application within the eight weeks allowed and there were no appeals lodged within the time allowed to appeal against a decision to grant planning permission. After the expiry of those time periods, Ryan requested that the Council grant the permission under s 34 (11)(a)(i) of the 2000 Act. When the Council did not grant the permission, Ryan applied to the High Court for an order of mandamus directing the Council to grant the permission. The Council argued, among other things, that the development would breach the Local Area Development Plan (LADP). The High Court held that it had a discretion to refuse the order on grounds that the development breached the LADP and dismissed Ryan’s action. Ryan appealed to the Supreme Court.

Allowing the appeal, MacMenamin J held that it wasn’t clear that the development did breach the LADP and it was not for the courts to engage in merit-based planning considerations. Referencing a line of case law which is critical of the default permission mechanism as a disproportionate means of forcing county councils to assess planning applications expeditiously, MacMenamin J observed that the Oireachtas has had opportunity to amend this legislation, but chose not to. The Court, therefore, must apply the law as it stands and grant the order of mandamus.

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  1. 2014 Review: November | scoirl

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