John A. Wood Ltd. v. Kerry County Council [1997] IEHC 168 (31st October, 1997)

JUDGMENT of Mr. Justice Smyth delivered the 31st day of October 1997 1. These two inter-related sets of proceedings deal with substantially the same subject matter. For ease of reference I shall refer to the first set of proceedings as "the JR proceedings" and the second set of proceedings as "the S.27 application"; I shall refer to the County Council of the County of Kerry as " the Planning Authority" and John Wood Limited/John A. Wood Limited as "the Company". These proceedings are concerned with the application and interpretation of the Local Government (Planning and Development) Acts, 1963-93, which when referred to herein, will be so by reference to the year of the Act rather than by full title. The proceedings were heard consecutively in the order of their issue. 2. I find the following facts to be either agreed or proven on the Affidavits filed in both the J. R. proceedings and the Section 27 application but I am mindful of the differences of the reliefs claimed and the degree of proof required in the respective proceedings:- 1. By letter dated 16th June, 1980 the Company sought planning permission from the Planning Authority in respect of the extraction of gravel at Minish, Carrigeencullia and Ballahacommas, Killarney, Co. Kerry as outlined on plans received by the Planning Authority on 18th June, 1980. The terms of this letter are as follows:- "Please find enclosed our planning application for extraction of gravel from the areas marked 1, 2, 3 and 4 on the enclosed maps. Areas No. 1 and 2 are immediately adjoining our existing works at Clasheens and Minish in Killarney. Areas No. 3 and 4 are immediately adjoining land marked No. 6 for which planning permission was granted on 6th of July, 1979. The planning register reference number. for this area is 695/79. These areas of gravel-bearing land are part of our long term planning for our Killarney operations. We are unlikely to have commenced operations in each of the areas marked 1, 2, 3, 4 and 6 within five years. Should you have any queries on the above, please contact me. Yours sincerely, for J. A. Wood Limited BRIAN COFFEY DIRECTOR" 2. On 12th August, 1980 the Planning Authority issued a notification of its decision to grant outline planning permission (subject to conditions) to the Company. 3. The decision of the Planning Authority was the subject of a third party appeal to An Bord Pleanala. 4. On 27th October, 1981 An Bord Pleanala decided to grant outline permission, subject to inter alia the following conditions:- "3. Access to sites Nos. 1 and 2 in the townland of Minish shall be via the existing to site No. 5. Access to site No. 3 in the townland of Carrigeencullia and site No. 4 in the townland of Ballaghcommane shall be via the proposed access to site No.6, details of which access shall be submitted for approval. 4. Before development commences, the developer shall pay to Kerry County Council a contribution towards any expenditure incurred or proposed to be incurred by the Council in maintaining the public road to serve sites 3 and 4. The amount to be paid and the time and method of payment shall be agreed between the developer and the said Council or in default of an agreement shall be as determined by An Bord Pleanala. 5. Before the development is commenced security by means of a bond or cash deposit shall be given to the Planning Authority by the developer to ensure the satisfactory completion of all the restoration and landscaping works necessary to reinstate the land to the satisfaction of the Planning Authority, or in the event of disagreement An Bord Pleanala. The amount to be paid, the time and method of payment shall be agreed between the developer and the Planning Authority, or failing agreement shall be determined by An Bord Pleanala." 5. On 14th January, 1982 the Planning Authority received an application for planning approval from the Company. Several of the requirements of the outline permission arising from conditions 1, 2 and 3 were not addressed by the Company. This fact was drawn to the attention of the Company by letter dated 10th March, 1982 from the Planning Authority. 6. On 26th March, 1982 the Company made reply and forwarded drawings 125/37. The terms of this letter (received by the Planning Authority on 31st of March 1982) are of importance, and read as follows:- " RE: Local Government (Planning and Development ) Acts, 1963 and 1976) Planning Reg. Nos. 1388/80 and 45/82 Dear Sir We are in receipt of your letter of 10th March and we enclose three (3) copies of our drawing No. 125/37 and reply hereunder to your queries. 1(a) The access to sites (1) and (2) are served by our existing Asphalt Road, A, coloured yellow on Drg. 125/37. This road is equipped with water spraying facilities and in addition to this we have a mobile water spraying tanker on site. The access road from site No. 6 (planning ref. No. 695/79) will have similar facilities when constructed and this will serve sites Nos. 3 and 4. 1(b) We have shown on drawing Drg. 125/37 the reinstatement, coloured green, of sites 1, 2, 3 and 4. The lands will be graded and the top soil replaced. They will then be seeded and planted as agricultural grassland and will be landscaped to conform with the appearance of the surrounding land. 2. We will have portable noise monitoring equipment located in the dispatch office as shown on drawing Drg. No. 125/37 so that we can comply with condition 2 of the outline planning permission. 3. The access to site Nos. 1, 2, 3 and 4 is shown on our drawing DRG. no. 125/37 and the access from site No. 6 will be in accordance with planning permission No. 695/79. We trust that this information is to your satisfaction. Yours faithfully BRIAN COFFEY DIRECTOR" 7. On 7th May, 1982 the Planning Authority issued a notification of a decision to grant an approval (subject to conditions) bearing reg. ref. 45/82. Conditions No. 6 and 7 are in like terms to the conditions 4 and 5 contained in the outline permission of An Bord Pleanala dated 27th October, 1981 (and are, in my opinion, conditions precedent). 3. The Planning Authority took the unusual but wisely precautionary step of issuing with the notification of the grant of permission to the Company a "warning" in terms that are of importance as indeed is the response of the Company, this document reads are follows:- "WARNING Under the provisions of Section 29 of the Local Government (Planning and Development) Act, 1976 this planning permission for your development at Ballaghcommane, Minish, and Carrigeencullia will expire on 26/10/86 and any development not completed by that date will be unauthorised unless a further permission is obtained. It is important, therefore, in your own interest, to complete the form below and to return it to the address shown as soon as building commences, in order to ensure that Council records can be kept up to date on the development so as to enable a record to be compiled to show that building was completed within the time limit. This could be a very important record for the future, particularly if it is ever desired to dispose of the property. To: Secretary, Kerry County Council, Planning Section, Ashe Memorial Hall, Tralee. RE: Planning Permission No. 45/82 Construction of the gravel extraction which is the subject of the above planning permission started on 21/6/1982 and is expected to be completed by ongoing/dependent on market conditions. (Signed) -T. Creedon Applicant p.p. John A. Wood Limited Carrigohane Road, Cork." (Notwithstanding what is stated by the parties in that document I am of opinion that the permission [i.e. the outline plus the approval] the originating date of which is 27th October 1981 terminated on 31st October, 1987 by virtue of the provisions of Section 2(5)(b)(ii) of the Local Government (Planning and 4. Development) Act, 1982. 8. Notwithstanding the provisions of conditions precedent hereinbefore referred to and the provisions of Section 26(10)(a) of the Act of 1963 which provides as follows:- " (10)(a) Where a permission or approval is granted under this section subject to any one or more of the conditions referred to in paragraphs (e), (g), and (h) of subsection (2) of this section, the permission or approval shall be of no effect and shall be disregarded until the condition or conditions has or have been complied with ." neither party seems to have addressed the provisions of this subsection in 1982. The matter, however, is raised in the JR proceedings by way of defence by the Planning Authority at paragraph (8) of the Grounds of Opposition. 9. Access to sites 3 and 4 by virtue of the planning permission register ref. 45/82 was intended to be via the proposed access to site No. 6. As previously noted from the letter of 16th June, 1980 planning permission for site No. 6 had already been the subject of an earlier planning permission (reg. ref. 695/79) notification of a decision to grant which is dated 6th July, 1979. Suffice it to say that by the application of Section 2(5)(b)(ii) of the Act of 1982 that permission expired or terminated in August 1986. Works of extraction were carried out by the company prior to 31st October, 1987 on sites No. 1 and 2. 12. The averment by Donal Kiely in paragraph 13 of his affidavit sworn on the 5th July, 1996 in the Section 27 application is to the following effect:- "Planning permission (695/79) in relation to site No. 6 was subject to conditions including a condition that 'before any materials are removed from the site large scale details of exit onto public road shall be submitted for the approval of the Planning Authority, in order to avoid a traffic hazard'. I say that no such details of any exit in relation to site No. 6 were submitted to the applicant and, in fact no works were ever carried out by the respondent to the said area No. 6 pursuant to the said planning permission in relation to any exit or otherwise. I say that the said planning permission in relation to area No. 6 expired on the 8th day of August 1986. No application for renewal or otherwise of permission No. 695/79 has ever been received by the Applicant herein from the Respondent despite the notification to the Respondent that the said permission No. 695/79 had expired contained in letter dated 7th July, already exhibited herein. Consequently I say and believe that the Respondent now has no authority to break or create any entrance/exit to or through the said area no. 6 onto the public road pursuant of the said permission (695/79) or otherwise. I say that a plan or drawing of the entrance/exit was never formerly submitted by the Respondent to the Applicant and that at a meeting between the parties in April 1994 referred to at paragraph No. 3 of the affidavit of Colm Kennelly filed on behalf of the Applicant herein in the aforesaid Judicial Review proceedings the Respondent herein inter alia furnished the Applicant with a drawing of the said entrance/exit". 5. In my judgment this averment is not satisfactorily answered by the averment of 6. Brian Coffey at paragraph 15 of his affidavit sworn on 24th September, 1996. 7. I am satisfied and find as a fact that planning permission for sites 1, 2, 3, 4, 5 and 6 the subject of reg. ref. 1388/80 and 45/82 were linked and intended to be linked to the planning permission 695/79 as per the Company's letters of 16th 8. June, 1980 and 26th March, 1982. 13. By letter dated 7th July, 1988 the Planning Authority indicated in unequivocal terms that an opening had been made in the road boundary fence and that a roadway and access/exit which was under construction were unauthorised and advised the Company to cease immediately the unauthorised development. I am satisfied and find as a fact that the planning authority did not give any incorrect information to the Company in their letter notwithstanding a somewhat unhappy mode of expression. A letter of muted apology from the Company dated 12th July, 1988 notes:- "The development of the area you mention was unfortunately delayed for various reasons and therefore it appears that inadvertently it is now unauthorised. We regret this situation and accordingly have ceased work in the area concerned and we are contacting the planning department in order to take the necessary steps to rectify the situation". [The company had other sources of material within the same area to meet the requirements of its customers in the period after 1987]. 14. Notwithstanding this almost continuous live planning history a hiatus of some seven years follows. In 1994 there were some inconclusive negotiations between the parties. It was not until 21st April, 1995 that the Company submitted an application to the Planning Authority under Section 4 of the Act of 1982 for an extension of "the appropriate period" in respect of planning permission (outline permission 1388/80 plus approval reg. ref. 45/82) which is unequivocally stated to have ceased on 31st October, 1987 and noting the date of commencement of development as September 1982. The letter accompanying the application form, and bearing the same date noted at item (k) as follows:- "Date on which development is expected to be completed;- January 1st, 2008, depending on market forces and the demand for gravel in the area". 9. The Planning Authority's response to the application was conveyed to the 10. Company by notice dated 16th June, 1995 in the terms following:- "Local Government (Planning and Development) Acts, 1963 - 1992 Ref. No. in Register 1388/80 to Mr. Anthony Creedon, John A. Wood Ltd., Carrigrohane Road, Cork Re: Application by John A. Wood of Carrigrohane Road on 21/4/1995 to extend planning permission granted on 27th October, 1981 to develop gravel pits at Ballahacommane, Killarney, Co. Kerry Reg. Ref. 1388/80 A decision to refuse to extend the appropriate period as regards the above mentioned permission was made on 15th June, 1995. The reasons for refusal are set out hereunder:- 1. Substantial development on the overall site area had not been carried out by expiry date in 1987. 2. The excessive gap in time between the expiry date in 1987 and the current application for time extension (almost 8 years). 3. Third Party rights of appeal would be compromised if the extension was given. There are quite a number of dwellings in close proximity to plots Nos. 3 and 4 in particular. 4. The development of plots nos. 3 and 4 would not be completed within a reasonable time period. The Applicant states January 1st, 2008 as the completion date but that depends on "market forces and the demand for gravel in the area". Dated 16th of June 1995" 11. The impasse that arose as a result of this exchange resulted in the Company seeking and obtaining an order from Flood J. on 27th July, 1995 for leave to apply for Judicial Review, for:- (a) An Order of Certiorari setting aside the decision of the Planning Authority refusing the extension of the planning permission. (b) An Order of Mandamus directing the Planning Authority to grant the application for the extension of the planning permission. (c) An Order directing the Planning Authority to further consider the application for the extension of the planning permission. 15. On the 4th August, 1995 a notice of motion returnable for 9th October, 1995 issued pursuant to the order Flood J. This was followed by a series of lengthy and detailed affidavits over a period between 23rd November, 1995 and 1st March, 1996 in which charge and counter charge were made. The Judicial Review proceedings were adjourned from time to time by consent of the parties. 16. By letter dated 12th February, 1996 from the Company's Solicitor to the Planning Authority a new element of controversy was raised. 12. The contention of the Company was that (1) the application for Judicial Review was irrelevant, and (2) there was no time limitation on the planning permission held by the Company on the basis of Section 2(2)(a)(ii) of the Act of 1982 with specific reference to a condition of a kind described in Section 26(2)(j) of the Act of 1963 and condition 1(b) and 1(e) of the decision of An Bord Pleanala dated 27th October, 1981. The letter concludes thus:- " Our clients are informing you of this as a matter of courtesy and to let you know that they will in due course be resuming work in their Eastern lands". 13. The response of the Planning Authority to such a challenge was predictable - given the background to date - and it is to this effect:- (a) If the judicial proceedings are irrelevant - please withdraw same and pay our costs. (b) A rejection of the interpretation of the statues and planning conditions. (c) A warning that if work is begun an application will be made to the Court prohibiting its continuance and an order seeking restoration of the land to its pre development state would be sought. 14. A further exchange of correspondence of 4th and 17th April, 1996 brought maters to a head when the Planning Authority issued on 2nd May, 1996 a 15. Warning Notice under Section 26 of the Act of 1976, as amended by Section 20 of the Act of 1992, in relation to unauthorised development of land. 17. The pace of events accelerated towards the end of May 1996 when the Planning Authority were notified by letter dated 21st May, 1996 by Third Parties that as of that date alleged unauthorised development was taking place on a site entrance to the access/exit for sites 3 and 4. (This development occurred against the background of the Warning Notice hereinbefore referred to). 16. The grounds for objection noted by the Third Party were as follows:- "(i) The constant flow of traffic from the site presents an immediate danger to the children living and playing in the area. (ii) The road from Ballough Cross down to Carrigeencuilla has just been resurfaced. It was in very bad condition due to heavy machinery and lorries. (iii) The dust, dirt and noise from such site would pollute the general area, damaging shrubbery and devaluing property, with obviously a lot at stake for at least twenty five householders in the area". 17. The letter concludes by stating that if the Planning Authority do not "put a stop to this development immediately" the residents " have every intention of taking this matter further". 18. On the following day 22nd May, 1996 the Company wrote to the Planning 19. Authority as follows:- "RE: Planning Ref. No. 45/82 Dear Sirs, You are aware that we are now commencing work on sites 3 and 4 of the above mentioned planning permission and as a result will in the very near future be using the public road serving these sites. Under condition No. 6 of the aforesaid mentioned permission we are required to make an agreed contribution towards any expenditure incurred by the Council in maintaining this public road serving sites 3 and 4. I would like to arrange to meet with you to agree the amount, timing and method of payment of this contribution at your earliest convenience. Please contact me at the above number so that we may arrange this meeting. I trust this is in order and look forward to hearing from you. Yours faithfully, JOHN A. WOOD LIMITED ANTHONY CREEDON". 20. I note in parenthesis that:- (a) The letter is an open letter not written without prejudice to any previous correspondence, dealing or contention(s) of the Company. (b) What is stated concerning sites 3 and 4 is in marked contrast to and in contradiction to what is stated in the Company's letter of 21st April, 1995, paragraph (1) [The final exchange of correspondence on 24th and 27th May, 1996 is unremarkable]. 18. A notice of motion dated 28th May, 1996 returnable for 30th May, 1996 initiated the Section 27 application, a number of affidavits were sworn therein over a period from 28th May, 1996 to 24th September, 1996. 21. It is against this factual background that a consideration of the legal issues must be undertaken. Statutory Frame Work 22. A limitation of the duration of a planning permission is prescribed by Section 2 of the Act of 1982; Section 4 of the Act of 1982 Act contains provisions enabling the duration of a planning permission to be extended. The appropriate regulations are the Local Government (Planning and Development) Regulations, 1994 (S. I. No. 86 of 1994) Part VI, Regulation 80 provides that an application for the extension under Section 4 shall be " not earlier than one year before the expiration of the appropriate period sought to be extended'" 23. In essence the Planning Authority, on receipt of an application for an extension of " the appropriate period" must be "satisfied in relation to the permission that- (i) the development to which such permission relates commenced before the expiration of the appropriate period sought to be extended, and (ii) substantial works were carried out pursuant to such permission during such period, and (iii ) the development will be completed within a reasonable time". [S.4 (1)(c) of the 1982 Act]. The interpretation of the provisions of Section 4 of the Act of 1982 has been the subject of extensive judicial consideration, and Counsel for the parties have cited and relied in their submissions on the following case law (in order of date of determination). The State, McCoy -v- Dunlaoghaire Corporation [1985] ILRM 533; Frenchurch Properties Limited -v- Wexford County Council [1992] 2 I. R. 268; [1991] ILRM 769; Garden Village Construction Co. Ltd -v- Wicklow County Council [1994] 2 ILRM 527 S. C., [1994] 1 ILRM 354, HC and Littondale Ltd. -v- Wicklow County Council (unreported 10th July, 1996 - Laffoy J.) 24. Before considering the provisions of the Act of 1982 upon which the parties concentrated, I am of opinion that the provisions of the Act of 1963 are in point. I find as a fact that (a) the outline permission and approval in relation to the lands contained conditions pursuant to Section 26 (e), (g) and/or (h) of the Act of 1963 which conditions were not complied with before any alleged development pursuant to the said permission was commenced; and (b) the permission was of no effect and strictly speaking, any works, (if any), as may have been carried out thereby, whether within the appropriate period or without, should be disregarded for all purposes connected with the application made under Section 4 of the Act of 1982. I do not say that they are not part of the planning history but if works have been carried out outside the appropriate period or within the appropriate period on foot of an ineffective permission, then such works cannot give rise or act as a basis for reliance as works carried out pursuant to a valid, effective, planning permission. 25. In the instant case at least conditions 4 and 5 of An Bord Pleanála's decision of 27th October, 1981 fall within the specific categories provided for in Section 10(a) of the Act of 1963. The following subsection, although generally thought to be a mere protection of common law rights seems to me to reinforce the matter of effectiveness of a permission, as it provides - "(ii) A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development". (c) While the parties to these proceedings do not appear to have addressed the affect of S. 26(10(a) of the Act of 1963 until the issue was raised in the Grounds of Opposition in the J. R. proceedings this does not mean that the Court can or should ignore the statutory requirements. 26. Even if my findings and conclusions are incorrect on this issue, that would not be the end of the matter because - 27. I. The application under S. 4 of the Act of 1982 was not made within the time prescribed by the Regulations or within a reasonable time thereafter, if such be permitted. Further even if so permitted no reasonable explanation for the delay in the bringing of the application has been tendered to the Court to my satisfaction. Furthermore, I decline to infer from the planning history or the evidence, that merely because as a matter of probability the originally intended development would exceed 'the statutory five years' that either - (i) the Planning Authority ought to have expected or anticipated an application under S. 4 of the Act of 1982, or (ii) that the statutory or regulatory provisions would not be adhered to. 28. II. Access from areas 3 and 4 was to be via an access from area 6 - the origin of the provision of that access arose out of, and was part of the development intended to be undertaken under sanction of the planning permission dated 6th July, 1979 (Reg Ref 695/79). The development upon which an applicant under S. 4 of the Act of 1982 may rely must have taken place under "such permission" as is relied upon for the extension of the appropriate period ( Garden Village Construction Co. Ltd -v- Wicklow County Council [1994] 2 ILRM 527). In the instant case, such works are alleged to have taken place on the area 6 access, were either purportedly undertaken on foot of (a) an expired permission 695/79 or (b) an ineffective permission 1388/80 because of the provisions of S. 26(10)(a) of the Act of 1963, or (c) a permission a condition (viz. Condition 3 of the decision of An Bord Pleanála dated 27th October, 1981) which was unsatisfied or not complied with and ought to have been complied with or satisfied before any development or use or works were (if they were) to be relied upon. 29. III. In the decision dated 16th June, 1995 of the Planning Authority hereinbefore recited, four reasons were given for refusing the extension of the appropriate period. It is appropriate that these now be considered in detail - "1. Substantial development on the overall site area had not been carried out by the expiry date ". 30. In the context of the J. R. proceedings it is not the function of the Court to act as an appellate tribunal, or to usurp the function of the planning authority. If it were to be a matter of appeal I would be inclined to the view that the extraction of quantities, such as are stated in the Company's application dated 21st April, 1995, represented substantial works - but is not a matter of appeal. The analysis of the provisions of S.4 of the Act of 1982 by Gannon J. in the State (McCoy) -v- Dun Laoghaire Corporation (1985) ILRM 533 at page 535 as adopted and amplified by Laffoy J. in Littondale Ltd -v- Wicklow Co. Council (unreported 10/7/96) at p. 10 of the typescript of that judgment is applicable in this case. While there were opposing views canvassed in the course of the hearing of the proceedings as to whether such works as were alleged to have been carried out were "substantial works" I am of opinion that what are or are not substantial works in any one case must be left to the Planning Authority to decide in each case based on its own merits. This was the approach applied by Lynch J. in Frenchurch Properties Ltd -v- Wexford Co. Council (1992) 2 IR 268 at p. 282 and I happily adopt this approach. Indeed in considering "the overall area" The Planning Authority gave the benefit of any element of doubt to the company. More importantly I am satisfied that such development as might possibly have been relied upon by the Applicant was not carried out by the expiry date in 1987. Accordingly the company failed to satisfy S. 4(1)(c)(i) and (ii) of the Act of 1982. "2. The excessive gap in time between the expiry date in 1987 and the current ap plication for time extension (almost 8 years). " 31. While this does not expressly refer to the 1994 Regulations hereinbefore referred to - it is quite clear to me that it is so intended. Regulation 80 provides that as regards a particular permission, an application for an extension of time " shall be made not earlier than one year before the expiration of the appropriate period sought to be extended". Regulation 81(g) indicates that one of the particulars to be given on an application is - "the date on which the permission will cease, or ceased to have effect". While it would have been preferable if the Planning Authority had adhered more closely to the wording of the provisions of S. 40 of the Act of 1982 and of the 1994 Regulations, the sense of what is intended to be conveyed is relatively clear and is supported by the averments in the affidavit of Donal Kiely sworn on the 27th November, 1995. I do not accept that the gap in time had its origin in any default by the Planning Authority. The statutory requirements existed for years before the company betook itself to address its problem. It is equally clear to me that the Planning Authority was not satisfied that the requirement of 32. S. 4(1)(c)(i) had been met. 3. Third party rights of appeal would be compromised if the extension was given. There are quite a number of dwellings in close proximity to plots Nos 3 and 4 in particular " 33. In my opinion this is no reason for refusal of a S.4 application. It is an irrelevant consideration which in the normal course could lead to an order for Certiorari. Were there not the very considerable bulk of findings against the company I would be minded to quash the decision of 16th June, 1995 because of the insertion of this reason and refer the matter back on a continuance basis to the Planning Authority to reconsider the application. However, because of my findings and conclusions on the applicability of S. 26(10(a) of the Act of 1963 and the other aspects of the S. 4 application I do not adopt the course of referring the matter back to the Planning Authority. 4. " The development of plots 3 and 4 would not be completed within a reasonable time period. The Applicant states January 1st 2008 as the completion date but that depends on 'market forces and the demand for gravel in the area' ". 34. It is clear that the company failed to satisfy the Planning Authority, and ac cordingly the application failed to pass the test set out in S.4(1)(c)(iii) of the 35. Act of 1982. Any doubts I might entertain concerning reason (1) and my views on condition (2) cannot and do not defeat reason (4) given by the Planning Au thority. 36. IV. The company contended that there was no time limitation on the planning permission held by the company on the basis of S.2(2)(a)(ii) of the Act of 1982 with specific reference to a condition of a kind described in S.26(2)(j) of the Act of 1963 and condition 1(b) and 1(c) of the decision of An Bord Pleanála dated 27th October, 1981. 37. In my judgment this contention is ill founded because S. 26(2)j) of the Act of 1963 is concerned with ' temporary permissions' as is clear from the reference to "a specified period". Indeed, S.56(1)(d) of the Act of 1963 dealing with the exclusion of compensation in respect of certain matters refers back to S.26(2)(j) in terms of a permission which relates to a temporary structure. 38. S.27 of the Act of 1963 deals with retention permissions - and has no relevance to the instant case, and if it had S.27(2)(d) again refers to 'a specified period'. While it may be true to say that structures on or about quarries are of a temporary nature and depend on either whether the quarry is being worked or not, or whose use may cease or become redundant depending on the life or use of the quarry, or may require to be removed to give effect to a reinstatement obligation, I am of opinion that the nature or kind of permission envisaged in S.26(a) and 27 is different in kind to that in the instant case. Even if I be incorrect in this view, it seems to me that the correct interpretation of S.2(2)(a)(ii) of the Act of 1982 is that the condition of a kind envisaged by ".26(2)(j) or S.27(2)(d) of the Act of 1963 in a permission still remains to be discharged and fulfilled. In other words those usually unattractive conditions in economic terms remain to be and can be lawfully discharged or fulfilled outside the usual five year term or period. 39. In the second edition of Walsh on Planning and Development Law, authored by Keane, J. in his editorial capacity, the matter is dealt with thus at paragraph 6.31 at p. 60 - "Section 2 of the Act of 1982 now sets the limits on the duration of planning permissions. The new provisions do not affect permissions for the retention of structures, permissions granted for a limited period or the continuance of a use in accordance with a permission. In addition, the expiration of a permission does not affect the obligation to comply with the conditions attached to the permission". 40. In my judgment, and with unfeigned respect to Keane J., this correctly states the law and is, in the manner I have indicated, applicable to the instant case. 41. Accordingly the order in the J. R. proceedings will be to discharge the order of Flood J. dated 27th July, 1995 and dismiss the application. 42. The order in the S. 27 application will be in the terms of paragraph numbers 1, 2 and 3 of the Notice of Motion. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII