THE HIGH COURT
								Record No. 1997 No. 281 J.R.

BETWEEN

GARRY McGOVERN
								APPLICANT
AND
THE LORD MAYOR, ALDERMEN AND BURGESSES
1OF THE CITY OF DUBLIN
								RESPONDENT

Judgment delivered by Mr. Justice Barr on the 22nd day of January, 1999.

	This judicial review arises out of a dispute between the applicant developer and the respondent planning authority regarding an application made on or about 6th December, 1996 for full planning permission for a development which was stated to comprise "alterations and extension of approved plans for No. 49 Ranelagh Road [Dublin] and for extension to rear of 50 Ranelagh Road.  The overall development to comprise a 21 bedroom guesthouse".  There is controversy regarding service and subsequent re-service on the planning authority of a particular document (the document) which contains information the furnishing of which would cause time to run against the respondent in the matter of ruling upon the application and notifying the applicant of its decision.  Section 26(4) of the Local Government (Planning and Development) Act, 1963 (the 1963 Act) provides for planning permission being obtained by default where:-

	"(i)	an application is made to a planning authority in accordance with permission regulations for permission under this section ....,
	(ii)	any requirements relating to the application of or made under such regulations are complied with, and
	(iii)	the planning authority do not give notice to the applicant of their decision within the appropriate period, 
	a decision by the planning authority to grant the permission.... shall be regarded as having been given on the last day of that period."

In terms of the instant case "the appropriate period" means two months from service of the document on the respondents' planning authority.  The applicant contends that the document, or facsimile thereof, was lawfully served on the authority on two separate dates and that at latest the time for the respondents' ruling upon the application expired on 7th May, 1997.  It is further submitted that in the premises the applicant has obtained permission for his proposed development by default pursuant to Section 26(4) of the 1963 Act; that the permission purported to have been granted by the planning authority dated 27th May, 1997 is a nullity and that the order made by An Bord Pleanala on 24th October, 1997 pursuant to an appeal brought by objectors to the latter alleged permission is also of no legal effect as it arose out of the respondents' alleged planning permission which itself was null and void and could not affect a pre-existing valid default permission. 
	The respondent authority has disputed that the document has been validly served.  It contends that time had not run against it and that its planning permission dated 27th May, 1997 was granted within time and, subject to the appeal to An Bord Pleanala, had the full force of law. 
	I am satisfied that it is unnecessary to resolve the foregoing controversy as to whether time had run against the respondents and whether the applicant had already obtained permission by default for his proposed development prior to the purported permission subsequently granted by the respondents' planning authority subject to conditions specified in its notice dated 27th May, 1997.  The issue of the planning authority being out of time in considering and ruling upon the application (if such were the case) is dependant upon a fundamental question which is at the heart of this application, i.e., having regard to the terms of the developer's application for planning permission on which his case is based and depends was he entitled to rely upon the statutory default provision?  

	The developer's application of 6th December, 1996 related to a guesthouse comprising 21 bedrooms in an area described as having zoning objective A1 in the statutory development plan of 1991 for the city of Dublin.  (The correct designation of the area is A2 but nothing turns upon that misdescription).  It is alleged by the applicant at paragraph 3 of his original affidavit sworn herein that the relevant zoning permits activities of the type envisaged in his application.  Mr. Peter Nelson, the respondents' planning officer who dealt with the application, takes issue with the latter point at paragraph 19 in his replying affidavit.  He contends that the relevant zoning does not "permit" the proposed development as alleged because it does not fall within the category of "normally permissible" developments under zoning objectives A1 or A2 as specified in the plan.  Unlicensed guesthouses are included in the "open for consideration" category under both zoning objectives.  The phrases "Normally Permissible" and "Open for Consideration" are defined in the development plan at p. 106 as follows:-

	"Uses as 'normally permissible' are generally acceptable in principle in the relevant zones.  Uses shown as 'open for consideration' are uses which would not be acceptable in principle in certain parts of the relevant use zone and will only be permitted where the Planning Authority is satisfied that the use would be consistent with the overall objective, not have undesirable effects and would be consistent with the proper planning and development of the area."

	It is submitted that "open for consideration" uses are not permitted per se under the plan but require to be accepted by the planning authority in the light of the particular circumstances of each case as being consistent with the proper planning and development of the area, i.e., such uses are not permitted unless and until specifically authorised by the planning authority or by An Bord Pleanala.  In short, it is submitted that unless so authorised no planning permission by default can be obtained in respect of a guesthouse development whatever the size of it might be.  It was also submitted that in the instant case the applicant's reliance upon an alleged default permission fails on a further ground in that his proposed development does not come within the definition of "guesthouse" in the development plan which is in the following terms:-

	"A building or part thereof where sleeping accommodation, meals and other refreshments are available to residents and non-residents and which has a minimum of five rooms and no more than 19 rooms and contains no licence to sell intoxicating liquor."

	In the light of the foregoing it is argued that the development envisaged by the applicant is not a guesthouse within the meaning of the development plan and, therefore, is not one which is "open for consideration" within the zoning objectives for A1 or A2 in the plan.  

	In response to the foregoing submissions it is argued on behalf of the applicant that the extent by which the application exceeds the maximum number of guesthouse rooms is such that in all the circumstances it does not constitute a "material contravention" of the plan.  The failure of the planning authority to take any point about alleged material contravention when dealing with the application is relied upon as evidence that the authority does not regard the fact that the application is for 21 bedrooms in the proposed guesthouse as being a significant factor amounting to a material contravention of the plan.  In that premise it is argued that the application in question was one for which default permission was obtainable.

	CONCLUSIONS
	As already stated, the net question for determination is this.  Having regard to the terms of the developer's application for planning permission, was he entitled to rely upon the statutory default provision contained in Section 26(4) of the 1963 Act and (if the planning authority was in default thereunder) is he deemed to have obtained permission for the development specified in his application of 6th December, 1996?

	The statutory time limit imposed on a planning authority to give notice to the applicant of its decision on a planning application has not only potential consequences for the authority and the applicant but also for any objectors to the proposed development if permission for it is deemed to have been granted by default - particularly where it is for a project which is outside the scope of developments specified as "normally permissible" in the relevant development plan.  Where default permission is obtained objectors may be unable to challenge the intended development by way of appeal to An Bord Pleanala if permission is not publicised in time for an appeal.  In consequence, objectors may suffer significant harm which might have been avoided or ameliorated if they had had the benefit of access to An Bord Pleanala as would be the case if permission had been granted by the planning authority within time.  Accordingly, in the interest of justice the scope of the statutory right of a developer to permission by default should be strictly interpreted.  In the light of that requirement I am satisfied that the following principles apply:-

(1)	To justify a right to permission by default under Section 26(4) a developer must establish, inter alia, that the application for planning permission on which he relies is four square within the "normally permissible" categories of development on foot of the relevant zoning objectives in the local authority development plan.  In my view the wording of the sub-section implies that a right of permission by default is restricted to an application which in the normal course of events is one which in principle is entitled to succeed.

	The types of development "normally permissible" as to zoning objectives A1 and A2 in the city of Dublin plan do not include guesthouses whatever their proposed size may be.  Some such user is included in the categories which are deemed to be "open for consideration" by the planning authority.  It follows that a guesthouse is not a development which is prima facie permissible in the relevant area, but it may be allowed by the planning authority if satisfied that it would be consistent with the proper planning and development of the area.  This necessarily entails a positive assessment by the planning authority of an application which is outside the normal confines of the development plan in contrast to the granting of permission for a development which is prima facie within the norm.  I am satisfied that a default permission must be confined to the latter.  It would be unreal and potentially unjust to others to interpret the sub-section as including not only permission by default for a development which is "normally permissible" under the development plan, but also an implied approval by the local authority of the particular development, without right of appeal, which is not "normally permissible" and where sanction is dependant on the planning authority being satisfied that the proposed use is consistent with the proper planning and development of the area in the special circumstances of the case.  The latter if granted by default entails a substantial and potentially far-reaching incursion into the rights and obligations of the authority under the planning code and of possible objectors to the project in question.  The grant of permission by default for a development which is "normally permissible" on foot of the relevant plan entails no major encroachment on the rights and obligations of the planning authority.

(2)	In the instant case the applicant's difficulty is compounded by the fact that not only was his application outside the scope of what is "normally permissible" under the development plan, it was also outside the ambit of uses "open for consideration" in that the proposal was for a guesthouse comprising more bedrooms than the maximum number which are deemed to be within the definition of a "guesthouse" in the plan.  For the reasons already stated, I am satisfied that a developer's right to permission by default under section 26(4) should be strictly interpreted.  The onus is on the developer to establish that prima facie he is entitled on foot of the development plan to the permission for which he has applied.  Even if a guesthouse was a user for which the applicant was prima facie entitled to a default permission, the proposed development is not a "guesthouse" as defined in the plan.  There is no basis on which the sub-section might be interpreted as sanctioning the proposed development on the ground that it does not materially contravene the development plan.  If it contravenes the plan it is not entitled to default permission.  In that regard, the relevant time is the date on which the default permission is alleged to have arisen.  The applicant must establish his entitlement as of that date.  Whatever may have happened afterwards is irrelevant.  As to the permission granted by the planning authority on 27th May, 1997; it reduced the number of bedrooms to 16 thus bringing the permission within the definition of "guesthouse" in the plan.  Accordingly, the planning authority was under no obligation to bring an application under Section 26(3) of the 1963 Act as amended.  That procedure would have been relevant only if the planning authority was disposed to grant permission for a guesthouse with more than 19 bedrooms.
	
	In my opinion the developer's application for planning permission dated 6th December, 1996 by reason of its nature was not one for which default permission could have been obtained on foot of section 26(4) of the 1963 Act even if the respondents' planning authority had failed to deal with it in time as alleged by the applicant.  The end result is that the planning permission granted by the respondents on 27th May, 1997 is valid per se and also the order on appeal therefrom made by An Bord Pleanala on 24th October, 1997.  I note that the applicant contested the appeal albeit without prejudice to his contention that no lawful appeal lay as he perceived that he had already obtained permission by default prior to the formal granting of permission by the planning authority.  

(3)	It is pertinent to add that the exclusion of the developer's application for planning permission from the benefit of the default mechanism contained in section 26(4) for the reasons stated herein did not deprive him of a remedy arising out of delay on the part of the planning authority in dealing with the application.  He was entitled to move the court for an order of mandamus in that regard, but in the events which have transpired that remedy does not now arise.