The paragraph “This information is essential…declared withdrawn as above” is entirely clear both in what it states and in what it wants. The warning contained therein is highlighted and underlined to draw the reader’s attention to this important point. Additionally, the warning text is placed almost immediately above the signature block; it is difficult to see how it could be more clearly positioned.
(iii) by letter dated 13th July, 2016, Reidy Stafford, Solicitors, acting for the applicants in the enforcement proceedings, wrote a letter to the Council. The letter was headed “Planning Register 15/1065 Retention of Planning House & Garage as constructed, Retention also for existing entrance and all ancillary site works at…Baltinglass, Co. Wicklow.” The letter robustly challenged the need for the registration of the burden. By letter of 14th July, 2016, to Reidy Stafford, which contains the reference “15/1065” at the top, followed by the heading “RE: Planning & Development Acts 2000 to 2015 retention of dwelling house and garage as constructed, retention also for existing entrance and all ancillary site works at…Baltinglass, Co. Wicklow”, the Council referred to the letter of the 13th July, 2016, (as received on the 14th July, 2016) and continues as follows:
“I note your comments in relation to item no 2 of our clarification request and await full response to same within six months of the date of our clarification request of the 4/4/2016.”
What is clear from the just-quoted text is that the Council was satisfied to address an aspect of the retention process with Reidy Stafford. However, what is notable about the letter is that Mr Cronin was copied on it, along with the applicants. And that, it seems to the court, indicates that while the Council quite properly answered the letter from the solicitors, it nonetheless saw Mr Cronin as the central figure in the retention process, being the agent nominated by the applicants in their retention application documentation.
(iv) what happened next makes clear that Mr Cronin was still centrally involved as agent on the retention side of matters. Thus at some point after point (iii), Mr Cronin sent a further copy of the letter of the 13th to the Council; this was received on 20th April, 2016, and receipt was acknowledged on the same date.
(v) on 4th May, 2016, a Council official had a telephone call with Reidy Stafford explaining why the requirement as to the registration of the burden could not be waived and suggesting another way in which the applicants in the within proceedings, at their election, might wish to proceed. Again, it is quite clear from this e-mail that the Council viewed Mr Cronin as central to the process. Thus the Council official wrote, inter alia:
“The applicant’s agent should be in a position to deal with this matter and send in the necessary documentation with the other information he is submitting as part of the Further Information response. There will be a need for re-advertising the expanded application, but this can be given to the agent following submission of the response”.
It is entirely clear from the foregoing (and cannot but have been clear to Reidy Stafford that the Council viewed Mr Cronin) as the applicants’ nominated agent as the person central to the retention process.
(vi) THE SECOND WARNING
by letter of 11th May, 2016, to Mr Cronin (and copying the applicants), which letter contains the reference “15/1065” at the top and the heading “RE: Planning & Development Acts 2000 to 2015 retention of dwelling house and garage as constructed, retention also for existing entrance and all ancillary site works at…Baltinglass, Co. Wicklow”, the Council stated as follows:
“I wish to acknowledge receipt on 20/04/2016 of letter and enclosures which are receiving attention.
AS stated in letter dated the 14th April 2016 [to Reidy Stafford] a full response has not been submitted in respect of the further information request and if a full response is not submitted within six months of the date of further information request i.e. 4/4/2016 the application will be automatically withdrawn.”
The above-quoted text comprises the entirety of the substance of the letter. Unlike the letter of 4th April, 2016, the (repeat) warning is not highlighted and underlined. However, the warning forms the bulk of the text in what is but a two-paragraph letter. It cannot have been missed. It put Mr Cronin and the applicants to the within proceedings on the clearest of notice as to what needed to be done…and as to the consequences if the necessary was not done within the six-month timeframe. The court does not accept that the reference to the reply letter of 14th April, 2016 involves an acknowledgement that Mr Cronin’s role as nominated agent of the applicants had been supplanted or supplemented.
(vii) by letter of 14th June, 2016, to the Council, under the heading “Re: Planning Register Reference 15/1065 Helen Nolan & Thomas Murphy”, Mr Cronin advised that “I have been instructed by the above applicants to inform you that they have instructed their solicitor to register the burden in compliance with the requirements of Condition 2 of PRR 03/8050. Evidence of this registration will be submitted you when it is completed.” In a letter of 21st June, 2016 to Mr Cronin, the Council acknowledged receipt of Mr Cronin’s letter of the 14th and indicated that “We await receipt of the registration confirmation from the Land Registry.” Again, it is quite clear from the foregoing that Mr Cronin sees himself and was perceived by the Council to be central to the retention process. And Reidy Stafford was not copied on the letter, unlike the previous correspondence to Reidy Stafford, on which Mr Cronin was copied. There is no suggestion or acceptance that the evidence of registration will be sent direct from Reidy Stafford.
(viii) in a letter of 16th August, 2016, under the heading “Re: Wicklow County Council – v. – Helen Nolan; Wicklow County Council – v. – Thomas Murphy”, Reidy Stafford wrote as follows to Coughlan White & Partners, the solicitors acting for the Council in the enforcement proceedings:
“We see that this matter is listed again on 1st September next. We understand that there has been no determination of the planning issues as of yet and you might confirm that this matter will be adjourned again for a period of three months awaiting a response.”
This is correspondence written in the context of the enforcement proceedings. It is not correspondence concerned with the retention application. Yes, it offers the ongoing “determination of the planning issues” as a reason for seeking the further adjournment but that does not transform what is a letter concerned with the enforcement proceedings into something else, nor does it endow on Coughlan White some role in the retention process.
(ix) THE THIRD WARNING
in a letter of 24th August, 2016, from Coughlan White to Reidy Stafford, under the heading “RE: Wicklow County Council – v. – Helen Nolan and Thomas Murphy, Carlow District Court – 1st September 2016” – so yet another letter concerned with the enforcement proceedings – Coughlan White indicate that their client (the Council) is amenable to the enforcement proceedings being put back to the start of November, and they indicate why this is so:
“We have taken instructions and confirm that a decision [regarding the retention application] will not have been made prior to the court date as we understand that your clients have not responded in full to the further information requested. If the full response is not submitted within the six months of the date for the further information request then the application will be automatically withdrawn.
In those circumstances we would suggest it is in your clients’ interest to respond in a timely fashion.
For the purposes of our client’s prosecution we are suggesting that the matter will be put back to the start of November. However, we would clarify that in the event of your clients’ application being withdrawn a hearing date will be sought hereafter.”
That (i) Coughlan White should relay its instructions as it did, (ii) the Council was polite enough to agree to an adjournment and offered good reason for so doing, (iii) the Council was generous enough to have Coughlan White relay to the applicants to the within proceedings a third warning as to the need for them to proceed in a timely manner (and the potential consequences for them if they did not), none of that transforms what is a letter concerned with the enforcement proceedings into something else, nor does it endow on Coughlan White some role in the retention issue process.
(x) in a letter of 30th August, 2016, under the heading “Re: Wicklow County Council – v. – Helen Nolan; Wicklow County Council – v. – Thomas Murphy; Carlow District Court 1st September 2016”, Reidy Stafford wrote as follows to Coughlan White:
“I understand that this matter is being adjourned. I enclose herewith a copy of the Property Registration Authority Deed duly completed by our clients and a copy of our application for the registration of same in the Land Registry. You might be good enough to note same and inform your clients of same.”
This is correspondence written in the context of the enforcement proceedings. It is not correspondence concerned with the retention application. It does mention that the process of the registration of the burden has been commenced and asks that this be relayed to the Council. But that is a matter that is as much of interest in the enforcement proceedings as it is in the retention process. The court does not accept that because Reidy Stafford, in correspondence concerned with the enforcement proceedings, mentioned a matter that was of interest in the retention process that this was a good communication for the purposes of the latter process in which Mr Cronin (who is not copied on the Reidy Stafford letter) remained the applicants’ nominated agent. Moreover, the court cannot but note that what was being communicated in the above-quoted message was, in any event, something of a nothing: the Council wanted proof of the registration of the burden; that application had been made for the registration of the burden was, in reality, neither here nor there; as practitioners well know, the mere fact that a person applies to register a burden entails absolutely no assurance that that application will eventually be successful.
(xi) in a letter of 5th September, 2016, to Reidy Stafford, which letter references planning reference 03/8050, the Council (apprised by Coughlan White of the development referenced at (x)), the Council references the letter of 30th August, indicates that proof of registration, when obtained, should be sent to the Council “for a letter of compliance to issue”. This is correspondence written in the context of the enforcement proceedings. It is not correspondence concerned with the retention application.
(xii) in a letter of 30th September, 2016, under the heading “Re: Wicklow County Council – v. – Helen Nolan; Wicklow County Council – v. – Thomas Murphy; Carlow District Court 1st September 2016”, Reidy Stafford wrote as follows to Coughlan White:
“We refer to previous correspondence in relation to this matter and we enclose herewith a copy of a letter received from the Property Registration Authority confirming that the Application has now been completed and we would be very grateful if you would notify your clients of this.”
This is correspondence written in the context of the enforcement proceedings. It is not correspondence concerned with the retention application. The letter does not appear to have been forwarded to the Council by Coughlan White until 17th October, 2016.
(xiii) on 21st October, 2017, under the reference “Re Planning Register 15/1065”, the Council issued an Order stating “In accordance with Article 33(3) of the Planning & Development Regulations 2001-2015, this application is declared withdrawn, as a period of six months has elapsed since the further information request of 4th April 2016.” The substance of this order was communicated to the applicants.
(xiv) in a letter of 7th November, 2016, Reidy Stafford sent a further letter to Coughlan White, this time under the heading “Re: Our Clients: Helen Nolan and Thomas Murphy C/O Cronin Planning & Design Consultancy, Station Road, Dunlavin, Co. Wicklow. Your Client: Wicklow County Council”. That letter stated, inter alia, as follows:
“We now enclose a letter dated 28th October last addressed to our clients from your clients in relation to their Retention Application.
We note that your clients have indicated that the application is ‘declared withdrawn’ as a period of six month has elapsed since the further information of the 4th April 2016.
We do not agree that the Further Information Request was not complied with fully.”
(xv) in a letter of 17th November, 2016, sent from Coughlan White (for the Council) to Reidy Stafford, under the heading “RE: Wicklow County Council –v – Helen Nolan & Thomas Murphy; Carlow District Court – Hearing – 5th January 2017”, Reidy Stafford’s letter of 7th November met with a comprehensive response which reads, inter alia, as follows:
“We are instructed that your clients were granted planning permission for a 275m2 house under planning register reference 03/8050. They then applied for retention permission for a 467m2 [house] that was built under planning register reference 15/1065.
On the 3rd December, 2015, a further information request was issued by our client in respect of 15/1065 to your clients and their agent, Cronin Planning and Design (CPD). Item 4 of that request required the submission of evidence of the registration of burden in compliance with the requirements of Condition 2 of 03/8050.
On the 24th February 2016, a response to the further information requested was received from CPD. In relation to item 4 of the request, the response stated that the issue was addressed at a recent court case. An acknowledgment of the further information response issued and further public notices were required as the further information submitted was deemed significant.
On the 10th March 2016, the revised public notices were submitted and acknowledged.
On the 4th April 2016, our client sought clarification in relation to Items 2 and 4 as set [out] in [its] letter of the 3rd December 2015 in respect of 15/1065. This letter clearly stated: ‘Please ensure your response is clearly marked with the above planning register reference number otherwise it may not be considered as a response to this request and may be declared withdrawn as above.’
On the 14th April 2016, a letter dated the 13th April 2016v was received by our client from your office in relation to our client’s letter of 4th April and specifically the item relating to the request for evidence that the registration of the burden as required by Condition 2 of 03/8050. You indicated that our client was imposing the condition ‘again’ or requiring your client to ‘complete another undertaking’. That is incorrect. Our client was simply requesting evidence that it had been complied with in the first instance.
Your letter was acknowledged on 14th April 2016 by our client setting out ‘I note your comments in relation to item no 2 of the clarification request and await a full response to same within six months of date of our clarification request of 4/4/2016’.
On the 20th April 2016, a further copy of your letter of the 13th April was received with a cover letter that you had sent same to CPD. This letter was also acknowledged by our client on this date.
Another letter issued from our client on the 11th May 2016 in relation to your letter of the 13th April, again stating ‘As stated in our letter dated 14th April 2016, a full response has not been submitted in respect of the further information request and if a full response is not submitted within six months of the date of the further information request (under 15/1065), i.e. 4/4/2026, the application will be automatically withdrawn.
On the 30th August 2016, we received a letter from you (no planning references included) enclosing a copy of an application to register the undertaking. On the 5th September 2016 our client acknowledged this letter of 30th August 2016 in respect of 03/8050 and stated that once registered with [the] Land Registry, the folio and map should be submitted. A compliance letter would only issue once same had been received. There was no reference however to 15/1065.
No submission was made in response to the clarification of further information under 15/1065. The onus was on your clients and/or their agent to ensure that they submit responses to further information referencing the relevant planning register reference.
While a letter was received from you (no planning references included) on the 3rd October 2016 enclosing notification of the registration of the burden, our client did not receive a direct response to the clarification on or before 3rd October 2016 and therefore the application was deemed to be withdrawn.
An email was received from CPD on 26th October 2016 by our client stating that a submission had been made on the planning application 15/1065. This was not the case. No documentation was received by our client with reference to 15/1065. An email was sent by our client to CPD on 28th October 2016 with regard to same…”.
