Publication
Complaint concerning Clare County Council and its handling of planning applications for development at Doonbeg Golf Course
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Published on
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Office of the Ombudsman
August 2007
Mr X complained to the Ombudsman about the manner in which Clare County Council dealt with him and his objections to planning applications for development at a golf course (Doonbeg) and also about the manner in which a particular planning application to which he had objected, was processed by the Council. The examination of his complaints consisted of correspondence with the Council, an examination of its files and interviews with relevant Council officials. This Report on the examination, which was conducted under preliminary examination procedures, does not involve formal findings or recommendations. Its purpose is to set out in clear terms the evidence gathered during the examination, the Ombudsman's views and her tentative conclusions. The Report, and any apparent conclusion or finding (or any references in that regard), must therefore be read in that context. References to Regulations means the Planning and Development Regulations 2001, unless otherwise stated.
Arising from the manner in which the Council dealt with his objections to a planning application concerning Doonbeg Golf Course in April 2002, Mr X (the complainant) made various complaints about the Council's handling of two particular planning applications made in April 2002 concerning Doonbeg Golf Course. In the following chapters, eleven different aspects of the handling of one or other application is examined. Under each complaint the response of the Council is given followed by the views of the Ombudsman. In most instances the Ombudsman did not come to the conclusion that the complainant's case was justified but, in two instances, her view was that the Council had not followed proper procedure and that the failures involved probably resulted in the loss of an opportunity to exercise a statutory right of appeal for the complainant. For the adverse effect of such loss which could not otherwise be restored, the Ombudsman suggested to the Council that compensation be paid to the complainant, and the Council agreed.
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.
Under A. 26(1)(a) of the Regulations, the local authority "shall stamp each document with the date of its receipt". The official stamped date of receipt on P02/591 is 16 April 2002 but someone has changed the date with a pen to make the application date appear as 04 April 2002. The complainant's submission was returned as it was outside the 5 week limit allowed from date of receipt of the application to make submissions (it was received on the 15th May 2002). However, if the original stamped date was allowed to stand, the submission would be within the time limit.
The Council's Response
The Council's position on the issue of date stamping was provided to the complainant's solicitors in a letter of 17 September 2003. In that letter the Council explained that:
The Council stated that the application was received on 4 April 2002 and it acknowledged that it erred in not stamping any or all of the application documents on the day it received them.
This Office sought details of the steps taken by the Council to improve its procedure with regard to the stamping of documents. In response the Council stated that it had reviewed its procedures with regard to receipting, stamping and validation of applications for Planning Permission. It now 'date stamps' all applications as soon as possible after receipt. All applications details are then entered on their computerised IPlan system. These applications are then validated/invalidated as soon as possible. The time required to date stamp applications, enter them onto the IPlan system and check for validation/invalidation is dependent on the number of applications received at any one time and the staff resources available to do the work. However, all applications received in a particular week (up to 4.00 PM on a Friday) must be stamped and entered on the IPlan system by 4.00 PM on the following Wednesday in order to facilitate the production of the weekly list, as is required by Regulations. Relevant staff are fully familiar with this procedure and any new staff received appropriate training in this procedure.
Details were also sought of the steps taken by the Council to improve its procedures with regard to the correction of date stamping errors. The Council stated that incorrect date stamping of documentation is a rare occurrence in the Planning Section. If it occurs the following procedure is now in place. The incorrect date stamp has a line drawn through it in pen and the documentation is date stamped with the correct date. The Officer doing this signs his/her own name under the correct date stamp and dates the document as per the date on which the correction is made. A memo is placed on the planning file explaining the basis and need for this correction.
The View of this Office
The manner of the stamping of this particular planning application and accompanying documentation with the date of receipt, was unsatisfactory. Some documentation was stamped 16 April 2002 and then changed to 4 April 2002. Other documentation on file was date stamped with a date which, by deletion of the first digit of the date, altered it to the 4 April 2002. The Fire Section informed the complainant that it received P02/591 on 4 April 2002. On the other hand, the Council stated that it was the Fire Section that alerted the Planning Section that it had received undated documents and this is how the stamping omission came to the attention of the Planning Section. It has not been possible to reconcile these conflicting accounts in relation to the involvement of the Fire Section.
Article 26(1) of the 2001 Regulations states:
"26. (1) Subject to sub-article (3), on receipt of a planning application, a planning authority shall -
(a) stamp each document with the date of its receipt, and ..."
'[O]n receipt of a planning application' implies that the stamping should be done immediately it has been received and it appears that this failed to occur in this case. The Council has acknowledged that it erred by not stamping any or all of the application documents on the day it received them. The Council's practice in this regard was unsatisfactory and resulted in confusion. The Council has carried out a review of its practices in this regard with a view to ensuring that what occurred in this case will not recur.
The complainant rang the Council on the 9th April, 2002 and again on the 12th April, 2002 and was told that no application (concerning Doonbeg golf course) had been received. He phoned a few days after the 12th and was told applications had been received, but was not informed of when the applications had been received.
The complainant made submissions in respect of planning applications P02/590 and P02/591 which submissions the Council received on 15 May 2002, but his submissions were returned by the Council because they were outside the 5-week time frame for making submissions. The complainant had assumed, based on the information given to him on 12 April 2002 that the applications were received shortly after that date. In fact they had been received on 4 April 2002.
The Council's Response
The Council's initial response to these issues, as conveyed to the complainant in a letter dated on 31 May 2002, was that when the complainant phoned on 9 and 12 April 2002, the applications had not been validated and had not been entered on its computer system. Therefore, he was informed that the applications had not been received whereas, in fact, the applications had not been validated. With validation shortly after 12/4/02 the application went 'live' on the computer system in the normal way. However, following a visit from staff of this Office to the Council and discussions with Council staff, the Council revised its response. Of particular importance was a copy of an extract from the Council's Weekly List dated 10 April 2002 showing P02/591 as having been received on 4 April 2002.
The Council provided a further response as follows. In April, 2002 the Council was allocating reference numbers to all files received, including those that were found to be subsequently invalid. The date of commencement of allocating reference numbers to all files (both valid and invalid) cannot be ascertained with certainty but was the established practice at April, 2002 and probably at January, 2000 in anticipation of the commencement of the 2001 Regulations as they relate to Planning Applications. From the evidence of the list of 10/04/02 (the Weekly List referred to above) it is certain that planning applications P02/590 and P02/591 had been entered on the Council's computer system (IPlan) by 10/4/02. Whether they had been validated by this date cannot be ascertained with certainty. With regard to the phone call by the complainant on 09/04/02, it cannot be ascertained with certainty whether or not the applications had been entered on the IPlan system at the time of the phone call but, in relation to the complainant's telephone call on 12/04/02, it is certain that both applications were on the IPlan system by this time. It cannot be ascertained with certainty whether they had been validated at that time.
In response to a further enquiry from this Office for clarification in relation to its procedures on receipt of planning applications, the Council stated that the information given to the complainant on 31 May 2002 was sincerely believed to be the true position at the time. When the enquiries by him on 9 April 2002 and 12 April 2002 elicited a negative response as to the receipt of the application file, it was assumed that it (the file details) had not been entered on the IPlan system. Subsequent production of the extract page no. 6 from the Weekly List demonstrated that the file had been entered on the IPlan system at least prior to 9.28 am on 10 April 2002. With regard to the application file Ref. P02/590 it cannot be stated with certainty why this application did not appear on IPlan screen when the enquiry was made on 9 April 2002 and 12 April 2002. The IPlan system is sensitive to enquiries and requires that the applicant name as inputted by an Officer must be exactly the same as the applicant name as originally entered on the IPlan system. It said that there are devices to overcome the problem such as broader search criteria. A misspelling of an applicant name can result in a negative search result. The Council said that this was not stated by way of explanation for what happened but was merely given as a comment. The Council had outlined the steps taken in the review of the system at the time and the current system now in place. To the knowledge of the Council's Liaison Officer, no similar event to this has occurred since.
The Council also referred to the complainant's call a few days after 12/4/02 which elicited the information that the application had been received together with the application number, but not the date of receipt. The Council commented that this could indicate to Planning Staff that he intended calling to the office, viewing the file and then making a formal submission before the cut off date of 9/5/02. It stated that it is important to note that this would have given him ample time to lodge a formal submission and to seek clarification on any queries that he had in relation to the application. It stated that there is always a chance of lack of clarity where communication is by telephone only. It stated that there is no substitute for calling to the Planning Office to seek inspection of a planning file. It commented that this was not to say that telephone communication in itself is inadequate, but it highlights the information gaps that can result. It acknowledged that it erred in not checking the weekly list.
The View of this Office
It appears that Planning Applications P02/590 and P02/591 were received by the planning authority on 4 April 2002. If a planning authority receives an enquiry regarding a planning application and the authority is aware that an application has been received (but possibly not validated), it would be reasonable to expect that the person enquiring would be given the information that the application had been received. The Council has accepted that any enquirer should be given correct information on all occasions. The Council has accepted, in its letter to the complainant dated 31 May 2002, that the complainant contacted the Council by telephone on 9 April 2002 and 12 April 2002 and was informed on both dates that the applications had not been received. In fact, the applications had been received on 4 April 2002 and certainly were on the Council's computer system by 12 April 2002. Taking everything into account and, in particular, the Council's admission that the complainant contacted the Council on two occasions to enquire about particular planning applications, the Ombudsman is satisfied that the complainant was not properly informed about the status of planning applications P02/590 and P02/591 on two occasions in April 2002.
On the basis that the applications had not been received by 12 April 2002, the complainant assumed he had 5 weeks from that time to submit his objections to the planning applications. His objections were received in the Council on 15 May 2002 but were returned to him as he was out of time. It would appear, therefore, that the failure of the Council to provide him with accurate information in relation to the receipt of the applications, may have contributed to his failure to get his objections to the Council on time and this, in turn, may have led to the denial of his statutory right to appeal the subsequent grant of permission to An Bord Pleanála. (In order to make an appeal to An Bord Pleanála, it is necessary to have made a valid submission/objection to the planning authority in relation to the particular planning application.)
According to Council records, other applications allegedly received after applications P02/590 and P02/591 had lower file numbers (e.g. an application received on the 8th April was given the reference number P02/577).
The Council's Response
In the course of this examination the Council stated that in April 2002 it was allocating reference numbers to all files received, including those found subsequently to be invalid, and this practice was established probably at January 2000. The Council agreed that the numbering system for applications received was inconsistent. It stated that this does not arise now on foot of new procedures put in place. It commented that numbering of applications is an administrative device which does not influence the date of receipt, validity or any other aspect of the application. It stated that inconsistency in numbering would not affect the complainant's rights in this case, as the system is date driven rather than number driven.
The Council further clarified the position with regard to the numbering of planning applications and its procedure in that regard. It stated that the new Regulations came into effect on 11 March 2002 and required revised procedures on all aspects of the processing of planning applications. As part of preparation for implementation of the new Regulations, the current processes were reviewed and arrangements were put in place throughout the planning department to meet the requirements of the new Regulations. As is the case with all processes, they are subject to review in the event of any errors made, lessons learnt from other local authorities, business process reviews carried out by the Department of the Environment, Heritage and Local Government / Local Government Computer Services Board etc. During the course of the examination carried out by the Office of the Ombudsman on the files in question, P02/590 and P02/591, the issue of numbering of new applications being slightly out of sequence with applications received after those two applications, the process of receiving new applications and entering them onto the IPlan system (which can generate the number of the next application), was reviewed. The practice as set out under the Council's Response at 2 above, outlines the revised procedures. The Council stated that this has been further improved since August 2005. The planning applications received each day are sorted by date and entered in the IPlan system (and thus given application numbers) according to date received, in date order. All new applications are date stamped by staff in the public office and then delivered to the registrations unit, where they are entered. In order to comply fully with the requirements of the 2001 Regulations as regards the weekly list of applications received, all applications received in a previous week have to be entered by the Tuesday/ Wednesday of the next week.
The View of this Office
As the practice of allocating reference numbers to all applications received, including those found subsequently to be invalid, was established probably at January 2000 and was in place at the time of receipt of applications P02/590 and P02/591, it appears that it was not followed and that the applications were not numbered in accordance with the sequence of applications received at that time. The Council accepts that the numbering system was inconsistent. Based on the revised procedures outlined above, this should not recur.
The Regulations state that the Council must make the Weekly List of planning applications available within 3 working days of the previous week. This was not done in this case, or even within 10 days of receipt of P02/591.
The Council's Response
The Council referred to the requirement under Article 27 of the Regulations to publish the Weekly List of Planning Applications received. The Council furnished a copy of an extract from the Weekly List dated 10th April, 2002 which showed P02/590 and P02/591 as having been received on 4th April 2002. It showed that application P02/591 was included on the Weekly List and that the List was published on 10th April, 2002 in compliance with the requirements of Article 27 of the Regulations.
The View of this Office
A copy of the extract from a list marked "Planning applications received from 1/4/02 -5/4/02" and dated 10 April 2002 was provided by the Council to this Office. Having examined the list, it appeared to have been published within the legal time frame, as stated by the Council.
The complainant stated that the Council received a second application for P02/591 on the 14 May 2002. He made a further submission on this second application on the 05 June 2002 which was within the 5 week period. However the Council granted planning permission on the 28 May 2002 which was within the 5 week minimum period stipulated in the Regulations.
The Council's Response
The Council stated that the application P02/591 was received on 4th April 2002 and the decision issued on 28th May 2002. It stated that this complies with the requirements of Article 30 and that there was no receipt of any "second application" on 14th May 2002. The Council received additional information on 14 May 2002 and considered that the submission of drawings on 14 May 2002 did not present any material alteration to those lodged on 4 April 2002.
The View of this Office
The complainant referred to the Council's decision to grant permission in relation to "Application Received: 04/04/02 & 14/05/02". However, it is clear that the application in this case was received on 4 April 2002. The additional information received on 14 May 2002 in the form of drawings was not considered relevant to the decision date as the Council did not consider they presented any material alteration to those lodged on 4 April 2002. As the application was received on 4 April 2002 and the Council's decision was made on 28th May 2002, it follows that the decision was not made within 5 weeks, of its receipt, as alleged.
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.
Condition 26 of planning permission P98/655 states that before the development commences on site the Developer shall ensure that all other legal entitlements including Rights of Way through the property are extinguished or otherwise catered for. According to the complainant, this has not been done despite numerous letters to the Council. (While this matter also related to the Doonbeg golf course development, it was unrelated to the April 2002 planning applications).
The Council's Response
The Council stated that Condition No. 26 of the decision of the Council, as the Planning Authority, dated 17th November, 1998 is not the relevant Condition here. The determination by An Bord Pleanála of 29th July 1999 is the relevant permission and the corresponding condition in its determination is Condition No. 10, which differs from that of the Council. The Council stated that the complainant was referring to public rights-of-way at and over the Golf Course. It referred to its letter to him of 16 October 2003 which, in turn, referred to a further letter from the Council to Carrowmore/Caherfeenick Right of Way Action Group dated 2 April 2003 and which it stated was available on Planning File P98/655.
The Council also referred to a Warning Letter which it had issued on 23 June 2005 against Doonbeg Golf Club Ltd concerning the laying of a gravel path / road from the Caherfeenick Road into the golf course, the construction of a stone wall obstructing a public right of way and the raising of ground levels on the right of way. The Council and An Bord Pleanála had determined under section 5 of the Planning & Development Act, 2000 that the works specified in the Warning Letter were development and not exempted development. The Council stated that enforcement proceedings had not been issued to date as the Council's solicitor had advised against doing so. This advice arises from the fact that Doonbeg Golf Club has lodged judicial review proceedings against An Bord Pleanála in respect of the Board's decision which stated that the development was not exempted development. The Council stated that the judicial review proceedings have not, as yet, been heard in the High Court.
The View of this Office
It appears that the decision of the Council made on 17 November 1998 was subject to appeal to An Bord Pleanála and that An Bord Pleanála made its decision on 29 July 1999 and, thus, it would be the decision and conditions imposed by An Bord Pleanála that would apply. It is noted that Condition 10 of the decision of An Bord Pleanála provides:
"All site development works including the provision of public access to the beach, footpaths, surface treatment of the circulation areas, lighting, disposal of surface water, location of services and design of the access point shall be to the requirements of the planning authority."
It is also noted that in the letter of 2 April 2003 referred to above, the Council stated it was satisfied that the public right of access to the beach has been secured on the basis of the alternative access and car park provided at the Mountrivers end and also the continued pedestrian right of access at the Caherfeenick Road end. It also stated that where matters are in dispute in relation to the extent of the right way over private property, this is a matter for the Courts to determine and it is not a function of the Council to determine such disputes. It also stated (in the letter) that it was not open to the Council to undertake work on private property and that the undertaking of any such works is a matter for the owner of the property. It stated further that in undertaking any works, all statutory processes including any requirements for planning permission or consultation with statutory agencies, such as Dúchas, must be undertaken. It would appear that the Council was satisfied that the public right of access to the beach had been secured.
In relation to, among other things, the blocking of a right of way with a stone wall during construction works, there is a dispute about the planning status of these developments. In the light of the pending judicial review proceedings initiated by the developer, it would appear that the Council's position is that it will not issue enforcement proceedings. In the circumstances its position does not seem unreasonable.
The complainant appealed the decision regarding P02/591 to An Bord Pleanála but it was deemed to be invalid. However, he sought copies of documentation submitted to An Bord Pleanála by Clare County Council in respect of his appeal and received same from An Bord Pleanála. This documentation does not have any "date received" stamps on it at all. Similarly the copies of documentation available and on view to the general public in the Council Offices no longer have "date received" stamps on them.
The Council's Response
The Council stated that the undated copy sent to An Bord Pleanála was a copy of part of the application which had been referred to the Area Planner without the date stamp on it. Only a duplicate, undated file was available in the Planning Section at the time of the appeal as the original, dated file was needed elsewhere. The original file was later returned to the Planning Section and is available for inspection in the normal manner.
The View of this Office
The Council has explained how the documents sent to An Bord Pleanála were undated. It is also clear from the information provided by the Council and outlined above, that there were difficulties with the date stamping of application P02/591, on receipt, and that the Council has accepted it erred in this respect. It appears that the error may have carried through to other records including the records provided by the Council to An Board Pleanála. The stamping errors, which are acknowledged by the Council, have been considered fully under 2 above. It does not appear that the unstamped records would have had an adverse effect on the complainant and, in any case, the appeal was rejected and, therefore, the matter does not require further consideration.
Summary
General administration
This Office has considered in some detail the various aspects of the complaint made as set out above. The examination has shown that there were a number of errors on the part of the Council in its administration of planning applications P02/590 and P02/591 including the date stamping of documents, the handling of the fees in relation to the applications and, in particular, the information provided to the complainant on 9 April 2002 and 12 April 2002. These errors contributed to his sense of grievance and unfair treatment and to his submission on the April 2002 applications being late. His late submission was refused by the Council and this refusal resulted in his ineligibility to appeal the Council's decision to An Bord Pleanála. In light of these errors, this Office asked the Council to review its handling of the matter and to advise the Ombudsman of the steps it had taken to ensure that the errors which occurred in this case would not recur and, to state what redress it proposed to offer the complainant.
The Council has outlined its current practices regarding the receipting, stamping and validation of applications and the handling of fees for invalid applications. These have been described in some detail earlier.
Redress - Compensation
This Office takes the view that the failures of the Council, as described above, contributed to the failure of the complainant to make a submission to the Council within the required period and, as a consequence, to the loss of his statutory right of appeal to An Bord Pleanála. The Ombudsman takes this type of administrative failure very seriously and, therefore, the Council was asked to consider what redress it would propose to offer the complainant.
In response the Council advised that the planning applications which were the subject of complaint to the Ombudsman were not subsequently acted upon. It advised that P02/590 was in fact withdrawn. It has also advised that P02/591 was superseded by P03/937, on which application the complainant was entitled to make whatever submissions/observations he wished. While these points have been taken into account, the fact remains that the complainant had some justification for making the case that, arising from failures on the part of the Council, he was late with his submission on application P02/591 in 2002 and, as a result, he lost his right of appeal to An Bord Pleanála. He was not to know that application P02/591 would be superseded at a later date and one cannot predict what the outcome of an appeal to An Bord Pleanála might have been or what the outcome of the Board's decision on that appeal might have had on the eventual development. In recognition of its failures, the Council offered compensation in the amount of €2,000.
Having considered the matter carefully, and taking into account, in mitigation, the fact that neither application received in the Council on 4 April 2002 was acted upon by the developer, this Office is of the view that compensation of the order of €2,500 would be appropriate in the circumstances. This is the sum considered reasonable to compensate the complainant for the errors which contributed to the loss of his statutory right to appeal the Council's decision to An Bord Pleanála, and for time, trouble and general costs incurred in making his complaint.
In its response, the Council stated that it noted the contents of the examination report of the Ombudsman and accepts the redress figure proposed of €2,500. Therefore, the Office considers the matter to be at an end.