The site notice in respect of application P02/591 was not in the prescribed format and therefore the application should have been returned as invalid under the provisions of Article 26 of the Regulations (A.26). Clare County Council rang the Developer's Consultants, and requested them to submit proper notices. This was not in accordance with the procedure outlined in A. 26.
The Council's Response
Prior to the submission of the application, the applicant's agent contacted the Council by phone to clarify the Council's requirements in the context of new Regulations. The Council took the view that, as it was deemed to be a repeat application, the site notice colour should be on yellow background under new Regulations (i.e. the Planning & Development Regulations, 2001) and advised the applicant's agent accordingly. The application was submitted on 4 April 2002 with a yellow notice. However, the Council subsequently ascertained that the site notice should, in fact, have been white in colour, as any first application and its repeat would have to be made after 11 March 2002 (the date the new Regulations came into effect) in order for the new Regulations to apply. The Council contacted the applicant's agent by phone and informed him that the notice should be changed to white. The applicant complied with this request. The Council did this at the time as it considered that it would not lead to a diminution of any third party rights in relation to the application.
The View of this Office
The application was received in April 2002 which was shortly after the introduction of the new Planning & Development Regulations 2001. The previous application was made in December 2001, under the previous 1994 Regulations. There was some confusion as to the requirement in the new 2001 Regulations concerning the colour of the site notice in such circumstances.
Article 26 of the 2001 Regulations provides
"26. (1) Subject to sub-article (3), on receipt of a planning application, a planning authority shall - ...
(b) consider whether the applicant has complied with the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25. ...
(3) Where, following consideration of an application under sub-article (1)(b), a planning authority considers that-
(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with, or
(b) the notice in the newspaper or the site notice, because of its content or for any other reason, is misleading or inadequate for the information of the public, the planning application shall be invalid."
This means that where any of the requirements of 19(1)(a) are not complied with or where a planning authority considers the site notice is misleading or inadequate for the information of the public, the planning application shall be invalid.
The requirement for the site notice to be in white arises by virtue of article 19(1)(b) and the requirement for it to be yellow, by virtue of article 19(4). Thus, the colour requirement for site notices does not arise by virtue of article 19(1)(a). It is not apparent that a yellow notice in place of a white notice (as opposed to the other way around) would be misleading or inadequate for the information of the public. It is not clear, therefore, that consideration of the application under article 26(3) would have found it to be invalid by reason of the colour of the site notice.
The matter of the site notice is further considered under article 26(4) which provides that :
"(4) Where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b) or 19 have not been met, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid."
It is unclear what an inspection of the land would have revealed in this case concerning the colour of the site notice. If, on inspection of the land, the Council considered the requirements of Article 19 had not been met, the application might have been declared invalid. However, the position remains that the application has, in fact, proceeded and permission has been granted.
It is apparent there was some confusion on the part of the Council concerning the correct colour of the site notice in this case. It would appear that the Council's initial opinion, that a yellow site notice should be erected, favoured third parties (including the complainant) and offered third parties a greater chance of being alerted to the new applications. If there had been a technical breach of the regulations (and this is unclear) regarding the colour of the site notice i.e. yellow instead of white, such breach would have been less serious than if it had been the other way round.
Under the heading "Welcome Centre" in the Council Planning Report, it states "Elevations submitted for the Welcome Centre on the 14th May, 2002". Application P02/591 was therefore incomplete. The same report also states that further/revised correct drawings in respect of the Health Spa were also submitted on the 14th May - again in contravention of A. 26.
The Council's Response
The Planning Authority referred to a schedule of drawings which were submitted on 4 April 2002 as part of the original application. Drawing for the Welcome Centre Plans, Elevations and Section at 1:100 is listed as Drawing No. 23. The Council also referred to a letter from the agent for the applicant specifying the reason for submission of further drawings relating to the Welcome Centre and the Health Spa. This letter referred to incorrect labelling of the floor plans for the Health Spa and an additional Drawing No. W24 Welcome Centre Elevations. The Council considered that the submission of these drawings on the 14th May, 2002 did not present any material alteration to the drawings already lodged on 4th April, 2002 and that they did not affect the validity of the application submitted on that date. It considered that the submission of these further drawings did not in any way diminish the rights of any third party.
The View of this Office
Mr X, (the complainant) stated that the Council's own Planning Report file suggested that the further information received was significant and he exhibited a report which refers to elevations submitted on 14 May 2002 and discrepancies with regard to the Health Spa building. However, the Council considered that the submission of the drawings did not present a material alteration to those already lodged and did not affect the validity of the application.
Article 26(3) of the 2001 Regulations (already referred to above) provides :
"(3) Where, following consideration of an application under sub-article (1)(b), a planning authority considers that -
(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with, or ...
the planning application shall be invalid."
It appears that once the requirements of the relevant articles referred to in Article 26(3) are met and the documentation required to accompany the application is provided, the fact that the Council may have needed some additional clarification on the plans would not necessarily have invalidated the application. Having considered the matter the Council's position does not seem unreasonable.