Applications P02/591 and P02/590 were made previously under different reference numbers were but deemed to be invalid by the Council. However, the Council has, on the file for P02/591, included the original fee receipt for 01/2252. This suggested that the Council considered these applications to be the same. The complainant made a valid submission in respect of the earlier applications and feels that the Council should have accepted this submission as valid for the second application also.
The complainant argued that the Council considered the December 2001 applications and the April 2002 applications to be the same. He also made certain arguments relating to the site notice and the provision of additional information (referred to above) and which were based on his view that the December 2001 and April 2002 applications were linked or were in some way the same. He was of the view that, having made valid submissions on the December 2001 applications, he qualified as of right to make submissions on the April 2002 applications. He referred to Guidelines issued by the Department of the Environment in July 2003 concerning Submissions and Observations which state that the Planning & Development Act also provides that only an applicant for planning permission or a person who made submission to the planning authority when the initial application was made will be entitled to appeal a decision of the planning authority on a planning application. His reading of the guidelines is that the Act also provides for his right (to appeal a decision of the planning authority) as a person who made a submission to the planning authority "when the initial application was made i.e. the December 2001 applications."
The Council's Response
Applications were received by the planning authority for planning permission on 7 December 2001 (P01/2251 and P01/2252). A submission dated 14 December 2001 was received from the complainant on 17 December 2001 and an acknowledgement issued to him on 18 December 2001 in the case of each application. A further letter issued to the complainant on 20 December 2001 informing him that the application had been deemed to be invalid. In its letter to the complainant of 20 December 2001 in relation to those two applications, the Council suggested that he contact it within two weeks to see if a valid application had been lodged. If it had not been received at that stage, he was advised to check for a public notice and keep in regular contact with the planning department.
The Council states that the applications which are the subject of this complaint (P02/590 and P02/591) were received on 4 April 2002. The complainant's submissions on these applications were returned to him by the Council as they were received outside of the prescribed period.
In relation to applications P01/2251 and P01/2252 submitted on 7th December, 2001 and declared invalid, the applicant requested that the fees be retained by the Council and then set against new applications which he intended submitting in the near future. The Council agreed but the applications were not the same; they were four different applications. Therefore, the submission made by the complainant on the first lot of applications could not automatically be carried forward to the subsequent applications, unlike the fee.
Following further enquiry by this Office concerning the fees, the Council stated that the retention of fees in respect of invalid applications is no longer in operation. It stated that the handling of the fees was essentially an accounting operation done at the request of and for the convenience of the applicant at the time. It stated that a fees reconciliation dated 16 December 2002 was carried out to set appropriate fees against appropriate applications on the IPlan system. It agreed with the view expressed by this Office that the handling of fees in this manner was not in accordance with the Regulations. However, it did not see that this interfered with a third party right or could have been the basis for any unfair or biased treatment of the complainant.
The View of this Office
The right to appeal a planning decision to An Bord Pleanála arises pursuant to section 37 of the Planning & Development Act, 2000 which provides :
"37.(1)(a) An applicant for permission and any person who made submissions or observations in writing in relation to the planning application to the planning authority in accordance with the permission regulations ......may... appeal to the Board against a decision of the planning authority..."
The right to appeal to An Bord Pleanála against a decision of a planning authority applies to any person who made submissions or observations in relation to the planning application (i.e. the application upon which the planning authority made a decision); it does not arise where the submissions/ observations were made in relation to a different or previous application.
Article 29 of the 2001 Regulations deals with the making of submissions or observations on a planning application and provides as follows:
"29(1)(a) Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application."
The applications received by the planning authority in December 2001 were separate from the applications received in April 2002. The right to make a submission or observation pursuant to Article 29(1)(a) arises within the period of 5 weeks from the date of receipt of the particular application which has been made, i.e. in this case, within five weeks of the date of receipt of the applications received on 4 April 2002. The position remains that the April 2002 planning applications were separate planning applications and the decision made by the planning authority on 28 May 2002 was on foot of applications received on 4 April 2002 and not on foot of the December 2001 applications. The planning applications made in December 2001 (P01/2251 and P01/2252) were deemed invalid by the planning authority. Effectively, those applications were at an end.
The complainant also raised the issue of the correct fee to be paid for applications P02/590 and P02/591 and the amounts paid on the day of their receipt. This argument appears to be based on the manner in which the Council handled the fees, i.e. the retention of the fees in respect of the December 2001 applications and the setting of these fees against the fees for the April 2002 applications. Article 95 of the 1994 Regulations (which applied to the December 2001 applications) provides that where a planning authority serves a notice in accordance with article 29(2)(b)(i) (informing the applicant that the application is invalid),
"they shall refund the fee paid to them in respect of the planning application."
Article 22(2) of the 2001 Regulations (which applied to the April 2002 applications) states that a planning application
"shall be accompanied by - ...(f) the appropriate fee..."
As regards the issue of the fees, the view of this Office is that the Council may have erred in law in retaining part of the fees in anticipation of a subsequent application, and although well intended, it gave rise to confusion about the status of the application(s). When application P02/590 of 4 April 2002 was lodged and, taking account of the fees retained from the earlier invalid applications, there was a discrepancy in the fees paid in respect of P02/590. This discrepancy may have been grounds for declaring P02/590 invalid. Again, the Council may have erred in law in accepting rather than rejecting that application. However, P02/590 was subsequently withdrawn.
In the course of our examination of this matter, it was noted by this Office that the Council's fee reconciliation dated 16 December 2002 for P02/590 shows a fee calculated at €2,240 and a fee accepted in the sum of €2,080.04. The Council was asked to clarify this discrepancy. It stated that the fee calculation at €2,240 was made up of 32 units at €65 equals €2080 and lagoons structures at €160 giving a total of €2240. It stated that the sum of €2,080.04 was accepted and this appears to reflect the housing element of the application only. It stated that this discrepancy was not followed up by the Council. It appears, therefore, that there was a discrepancy with regard to the fee paid on P02/590. However, the Council has informed this Office that application P02/590 was subsequently withdrawn.
It is the view of this Office that, as the December applications were deemed invalid, the fee for both applications should have been returned, within a reasonable period, to the applicant. The retaining of fees, even if at the request of the applicant, does not appear to accord with Article 95 of the 1994 Regulations. It is unfortunate that the communications by the planning authority were not clear, that the fees in respect of the December 2001 applications were not refunded, and that there was not greater separation between the December applications and the April applications. As a consequence, questions arose about the validity of the April 2002 applications because it appeared as if the correct fee did not accompany the April 2002 application. The Council has agreed with this Office with regard to the interpretation of the relevant regulations and has informed this Office that the retention of fees in respect of invalid applications is no longer in operation. Therefore, what occurred in this case should not recur.
Under Article 19(4) of the Regulations, if an application for planning permission is made and a subsequent application is received for the same location within 6 months, the site notice should be on a yellow as opposed to white background. Why did Clare County Council ask the applicant to change the site notice from yellow to white in respect of P02/591 when the same application had been made within 6 months previously.
The Council's Response / the View of this Office
The Council's response and the views of this Office on the issue of the site notice are set out at 1 above. It appears there was confusion about the matter in the Council and, as a consequence, the applicant was incorrectly advised.