THE HIGH COURT
			1999 No. 104 JR
			JUDICIAL REVIEW
IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963/1993
BETWEEN
PATRICK WALSH
			APPLICANT
AND
KILDARE COUNTY COUNCIL
			RESPONDENT
JUDGMENT of Finnegan J. delivered on the 29th day of July, 2000       
		By agreement in writing dated the 18th August, 1998 made between Patrick Morris Junior of the one part and the applicant of the other part the applicant agreed to purchase part of the lands in Folio 9753 County Kildare and situate at Giltown, Donadea, County Kildare containing in area 0.35 acres (hereinafter called “the site”).  Patrick Morris Junior retained the remainder of the lands comprised in the Folio upon which there is a residence and which contains in area 0.178 acres (hereinafter called “the retained lands”).  That residence is served by a septic tank and percolation area upon the site and within 60 feet of the applicant’s proposed dwelling.  
		On the 23rd June, 1998 the applicant applied to the Respondent for planning permission for the erection of a bungalow and garage on the site.  However the site notice erected by the applicant was not considered sufficient by the Respondent and by registered letter dated 14th August, 1998 the Respondent requested the applicant to erect a new notice the same to be maintained on site for a period of one month from the date of written notification to the Respondent that the notice is in place.  By letter dated 17th August, 1998 received by the Respondent on the 18th August, 1998 the applicant gave written notification to the Respondent that the new notice had been erected on the 17th August, 1998.
		The Respondent issued a request for additional information pursuant to Article 33(3) of the Local Government (Planning and Development) Regulations 1994 to the applicant by registered letter dated 16th October, 1998.  The letter was in fact posted on the 19th October, 1998 and received by the applicant on the 20th October, 1998.  It is common case that the request for further information was not given within a period of two months commencing on the 18th August, 1998 and that the Respondent did not give notice to the applicant of their decision within the appropriate period pursuant to Section 27(3) of the Local Government (Planning and Development) Act 1963 that is within the period of two months beginning on the day of the receipt by the Respondent of the applicant’s letter dated 18th August, 1998.
		The Local Government (Planning and Development) Regulations 1994 Regulation 18(1) requires that a planning application shall state the name and address and telephone number if any of the applicant and the address to which any correspondence relating to the application shall be sent.  The applicant completed a planning application form issued by the Respondent and in response to question six therein gave the name and address to which notification should be sent as Pat Walsh, Ballinagappa, Clane, County Kildare and in response to question 26 therein gave the name and address and telephone number of the applicant as Patrick Walsh, Ballinagappa, Clane, County Kildare 045 861077.  The address given is in a rural area and is that of Bernadette Doran and her husband Thomas Doran with whom the applicant had been living since 1993.  The registered letter dated 14th August, 1998 hereinbefore referred to is addressed by the Respondent to the applicant in the following terms -

	“P.Walsh, Ballinagappa, Clane, County Kildare”

		It was sent by registered post and was received by the applicant.  A further registered letter dated 16th October, 1998 similarly addressed was posted by the Respondent on the 19th October, 1998 and received by the applicant on the 20th October, 1998.  
		On the 16th October, 1998 John C. Byrne an Official of the Respondent endeavoured to deliver the letter dated 16th October, 1998 personally to the applicant or by leaving it at the address given either of which methods constitutes the giving of notice pursuant to the Local Government (Planning and Development) Act 1963 Section 7(1) (a) and (b).  He did not succeed in finding the applicant’s residence.  He made a further unsuccessful attempt on the 17th October, 1998.  Ballinagappa is a townland in the vicinity of Clane and he made general enquiries in Ballinagappa but was unable to ascertain the location of the applicant’s residence.  He enquired from a Mr. Reilly of Ballinagappa Cross, an elderly resident of the area, but he was unable to assist as to the location of the applicant’s residence.  He called to other houses in the area for assistance without success.  He returned to the Respondent’s offices in Naas to check the Respondent’s file to see if it contained any information which would assist him in identifying the location of the applicant’s residence but without success.  It was in these circumstances that he failed to effect service on either the 16th or 17th October, 1998.  In support of the application for planning permission Emmett Stagg T.D. wrote to the Respondent on the 23rd June, 1998 and his letter was on the Respondent’s planning file.  The letter was headed with the applicant’s name and address as set out above and contained the following paragraph -

“The above has been living in Clane with his sister for the past six years following the break up of his marriage”

	Mr. Bryne did not avert to this information or did not attach significance to it.
	In these proceedings the applicant claims a declaration that in the circumstances aforesaid he is entitled to a default permission pursuant to the provisions of the Local Government (Planning and Development) Act 1963 Section 27(3) (a).  The Respondent relies upon the following grounds of Opposition -
1	The applicant failed to specify with sufficient accuracy his address for service 	of documents in his planning application in that he failed to specify that the 	said address was care of his sister Mrs. Bernadette Doran, Ballinagappa, 		Cane, County Kildare thereby frustrating service of the said request for further 	information by the Respondent pursuant to the provisions of Section 7(1) (a), 	(b) and (d) of the Local Government (Planning and Development) Act 1963
 2	The Respondent endeavoured to effect service of the said request for 		further information on the applicant at the address given by the 			applicant at Ballinagappa, Clane, County Kildare on the 17th October, 		1998  and within the time limit prescribed by Section 26 of the Local 		Government (Planning and Development) Act 1963 pursuant to the 		provisions of Section 7(1) (a) and (b) but due to the applicant’s failure to 		specify his said address with sufficient accuracy as set out above the 		Respondent was unable to find the applicant or his address in Ballinagappa, 	Clane, County Kildare on the 17th October, 1998.
	In the premises the Respondents submits that the applicant ought to be 		refused the discretionary relief sought from this Honourable Court.
3	The proposed development in respect of which the applicant has sought 		planning permission would constitute a material contravention of the current 	County Development Plan of the County of Kildare and accordingly the 		Respondent had no authority to grant permission for the development such 	a grant being ultra vires the powers of the Respondent and accordingly the 	applicant is not entitled to the relief sought or to any relief.
	The Local Government (Planning and Development) Act 1963 in relation to 	service of notices provides in Section 7 thereof as follows -

“7(1) Where a  notice or a copy of an order is required or authorised by this Act or any order or regulation made thereunder to be served on or given to a person it shall be addressed to him and shall be served on or given to him in one of the following ways:-

(a) Where it is addressed to him by name by delivering it to him
(b) By leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address.
(c)By sending it by post in a prepaid registered letter addressed to him at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address
	(d)Where the address at which he ordinarily resides cannot be 		ascertained by reasonable enquiry and the notice or a copy is so 		required or authorised to be given or served in respect of any land or 	premises, by delivering it to some person over 16 years of age resident 	or employed on such land or premises or by affixing it in on 		conspicuous position on or near such land or premises”

		In Freeney-v-Bray UDC (1982) ILRM 29 O’Hanlon J. held that the provisions of Section 7 of the 1963 Act read in conjunction with Section 26(4) (a) and (b) indicate an intention on the part of the legislature that there was to be an obligation on the planning authority to communicate their decision to an applicant within a strict limit of time and further that it was intended that notice of decision should reach the applicant in one of the ways indicated in Section 7 of the Act within “the appropriate period” as defined by Section 27 thereof.
		The Local Government (Planning and Development) Regulations 1994 Regulation 18 provides for the contents of planning applications.  Regulation 18(1) provides inter alia as follows -

“18(1) A planning application shall:-
(a)(i) state the name and address and telephone number if any of 			the applicant and of the person if any acting on behalf of the applicant
(ii) Indicate the address to which any correspondence relating to the 		application should be sent”

	The applicant in the form of application gave his name and address and telephone number as applicant and gave his name and address as the name and address as  those to which notification should be sent.  The name and address was clearly sufficient had the Respondent opted to send the request for additional information by registered post as the two registered letters which the applicant sent to the Respondent dated the 14th August, 1998 and 16th October, 1998 were duly received.  However the intention of the 1963 Act Section 7(1) is that the planning authority should have a choice as to the manner in which it will give notice and the purpose of the Local Government (Planning and Development) Regulations 1994 Regulation 18(1) is to enable the planning authority to give notice in whichever manner set out in the 1963 Act Section 7(1) it should choose.  If the address given by an applicant for planning permission is inadequate to afford the planning authority a choice of the full range of options for giving notice then notwithstanding that the applicant acted in good faith the application is bad.  I have no doubt that the Applicant acted in good faith equally I am satisfied that the Respondent’s servant Mr. Byrne acted in good faith and made all reasonable efforts to find the applicant’s residence but was unsuccessful in so doing.  Had the Applicant adopted the simple device of giving his address as care of either Bernadette Doran or Thomas Doran Mr Byrne would have located the address given by the applicant without undue difficulty.
	In Crodaun Homes Limited-v-Kildare County Council (1983) ILRM1 the Supreme Court considered the sufficiency of a notice of intention to make a planning application inserted in a newspaper.  The notice was in the following terms -

“County Kildare.  Full permission sought for 14 bungalows at Leixlip Gate for 		Crodaun Homes Limited”

		The lands the subject matter of the application were part of Castletown Estate in Celbridge, County Kildare.  On behalf of the Plaintiff the local doctor in Leixlip, the local Postman in Leixlip and a resident of Leixlip gave evidence that they would have known where Leixlip Gate was without any further description.  The application itself referred to the lands as at Leixlip Gate, Celbridge, County Kildare and the lands were situtate in the townland of Kilmacraddock Upper.  The Supreme Court held that the notice was insufficient although it would have been sufficient if either a reference to Castletown Estate or Celbridge or Kilmacraddock Upper had been included.  Griffin J. in his Judgment said -

“The primary object of the publication in a newspaper is to ensure that adequate notice is given to enable those members of the public who are interested in the environment, or who may be affected by the proposed development, to ascertain whether they may have reason to object to the proposed development.  In my view to satisfy the requirement of stating “the location of the land” both the letter and the spirit of the regulations require that in the case of land and in particular land which is not in an urban area, the site on which it is proposed that development should take place must be correctly and accurately so described in relation to the district in which the land is situate for example by the estate of which it forms part, or the townland, or the neighbouring village as to be readily and reasonably identifiable.”

		The same logic must apply to the requirement of the Local Government (Planning and Development) Regulations 1994 Regulation 18(1) - the address given must be sufficient reasonably to enable the planning authority to give notice in each manner authorised by the 1963 Act Section 7(1) thereof.  Having regard to the circumstance that the address given is for a dwelling situate in a rural area and the fact that notwithstanding reasonable efforts on his part Mr. Byrne was unable to effect delivery of the notice I hold that the address given by the applicant in his application for planning permission was inadequate and accordingly that his application for planning permission was bad.  Upon this basis the applicant is not entitled to the declaration which he seeks.
	The Respondent in addition claims that the development would represent a material contravention of its Development Plan and refers to a number of provisions therein as follows -

“3.8.1 The Council will give special consideration to people and their families who are in engaged in agriculture or to County Kildare people working within reasonable distance of the site
3.8.3 Apart from the above the Council will generally refuse housing in the rural countryside particularly....if....it is contrary to public health requirements....
3.8.4 In the event of a permission been granted it may be subject to....regulations in order....to maintain public health standards.....These requirements shall apply as follows -
(d) Sites for houses in rural areas without main drainage shall generally be half an acre at least in extent.  Notwithstanding this the site must satisfy standard soil percolation tests and public health requirements and must comply with the following septic tank requirements -
The location of the septic tank -
(i) shall be not less than 19m (60 feet) from the dwelling house it serves or from any other dwelling house in the neighbourhood
Design of percolation area 
From the results of a percolation test the length of the distribution pipe required is found.  This length should then be subdivided in to a number of equal lengths and positioned on plans subject to the following recommendations -
No part of the percolation area shall be closer than 18m (60 feet) to the nearest dwelling or any other habitable building”

		The Respondents submission is that where the grant of planning permission on foot of an application would involve a clear material contravention of the development plan the applicant for the same could not obtain a valid planning permission and equally could not obtain a valid default permission: Calor Teoranta-v-The Council of the County of Sligo (1991) 2.I.R.267. I accept this as a correct statement of the law.  The Respondent further submits that having regard to the provisions of the development plan at 3.8.3 and 3.8.4 to grant permission on foot of the applicant’s application for planning permission would involve a material breach of the development plan.  Insofar as paragraph 3.8.3 is concerned having regard to the wording of the same the Council retains a discretion to grant planning permission for housing notwithstanding that the same is contrary to public health requirements.  However it is clear that the applicant could not comply with the mandatory requirements in relation to septic tank and percolation area in that the severance of the site from the retained lands would result in the retained lands being in breach of the development plan the septic tank and percolation area serving the same being within 60 feet of the applicant’s proposed dwelling. In these circumstances I hold that the grant of planning permission on foot of the applicant’s application for planning permission would have involved a material breach of the development plan.  Accordingly the applicant is not entitled to a default permission.
		In so finding I am mindful of the contents of the Affidavit of Aidan Dempsey sworn on behalf of the applicant that the requirements of the development plan as to septic tanks do not prohibit or indeed affect the discretion of the Respondent to grant planning permission where effluent disposal is by way of an effluent treatment system and that such a system was approved for the retained site by planning permission reference 99/990.  However the relevant date is the 18th August, 1998 which pre.dates that permission and at that date the retained lands were serviced by the non complying septic tank.
		Having regard to the foregoing findings the applicant is not entitled to the relief which he seeks.