An Bord Pleanala
Cases
The State (Elm Developments Ltd) v An Bord Pleanala
1980 No. 269SS
Supreme Court
23 February 1981
[1981] I.L.R.M. 108
(Henchy J, Griffin, Kenny JJ)
HENCHY J
delivered his judgment on 23 February 1981 nem. dis.: … saying Elm Developments Ltd (‘the developer’) applied in 1979 to Bray Urban District Council, the local planning authority, for planning permission to build a shopping centre at Quinsboro Road, Bray. The application was successful. On 8 February 1980 a notification of the decision to grant the permission issued from the planning authority to the developer. This permission was, of course, not final. Under s.26 of the Local Government (Planning and Development) Act, 1963 (as amended by the 1976 Act), any person was entitled to appeal to an Bord Pleanala (‘the Board’) against the grant of the permission. However, this right of appeal is not unqualified. Certain formalities are expected to be complied with. Where (as is the case here) the permission is granted, the would-be appellant must appeal within the period of twenty-one days beginning on the day of the giving of the decision: s.26(5) of the 1963 Act. Furthermore, under the relevant Regulations (Art. 36 of SI No 65 of 1977) it is required that an appeal ‘shall (a) be in writing, (b) state the subject matter of the appeal, (c) state the grounds of appeal, and (d) be accompanied by a deposit of £ 10 as required by s. 15 of the Act of 1976’.
In this case, one E. Power (‘the appellant’) wrote to the Board on 28 February 1980. The letter stated that on behalf of local residents and himself he wished to appeal against the grant of permission. The letter was accompanied by a deposit of £ 10. In every respect except one, the letter was unquestionably a valid appeal. The single questionable feature was that the letter did not state the grounds of appeal. Instead, what the appellant put in the letter was: ‘Full particulars of the extent and nature of our appeal will be submitted to you shortly when the residents have examined the implications of this decision in detail’.
Because of the failure of the appellant to state the grounds of appeal in the letter, the developer has claimed that the ‘appeal’ is a nullity and that the Board has no jurisdiction to hear it. To bring his point home, he sought and obtained a conditional order of prohibition against the Board, under which the Board would be debarred from hearing the appeal. But D’Arcy J refused to make absolute *110 the conditional order. He held that the requirement that the written appeal should state the grounds of appeal is directory rather than mandatory, and that, accordingly, the Board was entitled in the circumstances to overlook the non-compliance with it. Keane J, in The State (Walsh) v An Bord Pleanala (19 November 1980; unrep.), a case in which the facts were indistinguishable from those of the present case, reached the same conclusion. The sole question in this appeal by the developer against the order of D’Arcy J is whether that conclusion is correct.
Whether a provision in a statute or a statutory instrument, which on the face of it is obligatory (for example, by the use of the word ‘shall’), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.
An example of a truly mandatory provision is to be found in the decision of this court in Monaghan UDC v Alf-a-Bet Promotions Ltd. (24 March 1980; unreported). The developer in that case was seeking development permission which would allow him to convert a drapery shop in the town of Monaghan into a betting office and amusement arcade. The relevant planning regulations required that a notice published by the developer in a newspaper of his intention to apply for development permission should state, inter alia, ‘the nature and extent of the development’. The notice published by the developer in that case referred only to ‘alterations and improvements’. By no stretch of interpretation could that be said to be indicative of the nature and extent of the proposed development. The court considered that the inclusion in the notice in a newspaper of information as to the nature and extent of the proposed development was vital to the proper operation of the statutory scheme for the grant of development permission. The veiled and misleading notice that was published was held to be a non-compliance with that mandatory provision and it could not, therefore, be excused. In the course of my judgment I said:
I … feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In such circumstances, what the legislature has, either immediately in the Act or mediately in the Regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed *111 obligation has been substantially, and therefore adequately, complied with.
The present case is the antithesis of that case. In that case it was the developer who was seeking to have the departure from the statutory requirements excused. In that case the notice in the newspaper, so far from informing the public of ‘the nature and extent’ of the proposed development, concealed that information behind the general and undescriptive words ‘alterations and improvements’. Local residents or local business people to whom a betting office and amusement arcade would be anathema might well have been led by the notice to think that all that was proposed was a refurbished drapery premises. Whether intentionally or inadvertently, the notice was calculated to lure interested parties into abandoning their opportunity of making representations against the grant of the permission. In the circumstances, it would have been a travesty of the statutory scheme of development control if the requirement which was departed from had been held to be merely directory.
Here it is a local resident, acting for himself and other local residents, who is said to have been inexcusably at fault in not conforming to the regulations. His letter to the Board stated that they wished to appeal and requested an oral hearing. That was an appeal in writing, as was required. The letter adequately stated the subject matter of the appeal as was required. It was accompanied by a deposit of £ 10, as was required. It departed from the requirements of the regulations only in not stating the grounds of appeal. But it undertook to submit those grounds shortly when the residents had an opportunity of examining the implications of the decision in detail.
The decision of a planning authority to grant a development permission, while not necessarily final, will become final if an appeal is not lodged within the time fixed by the Act. Since an extension of that time is not provided for, the requirement as to time is mandatory, so that a departure from it cannot be excused. The requirement that the appeal be in writing is so obviously basic to the institution of an appeal that it too must be considered mandatory. So also must the requirement that the written appeal state the subject matter of the appeal, for the absence of such identification could lead to administrative confusion. The lodgment of a deposit of £ 10 with the appeal (perhaps not necessarily physically or contemporaneously with the appeal) would also seem to be an essential part of the statutory scheme, so as to discourage frivolous, delaying or otherwise worthless appeals.
The requirement that the appeal should state the grounds of appeal seems to me to rest on different considerations. Even when the appeal contains a full statement of the grounds of appeal, that statement is not conclusive as to the grounds that will be considered on the hearing of the appeal. That is because s.17 of the 1976 Act says this:
The Board in deciding a reference or appeal may take into account matters other than those raised by the parties to the reference or appeal if the matters either relate to the proper planning and development of the area of the relevant planning authority or are matters to which by virtue of s.24(2) of this Act the Board may have regard, provided that the matters are brought to the notice of those parties and they are accorded an opportunity of making observations thereon to the Board or, in the case of an oral hearing, the person conducting the hearing.
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The effect of that provision is that the Board may always treat the grounds lodged with the appeal as merely interim or provisional grounds. Even if the objector in this case had lodged a set of grounds of appeal with his appeal, the Board would be entitled to entertain further or other grounds, at any stage up to the determination of the appeal, provided those further or other grounds relate to the proper planning and development of the area, or are matters to which by virtue of s.24(2) of the 1976 Act the Board may have regard, and provided the developer is given an opportunity of making observations thereon.
Because of that, the grounds of appeal required to be stated in the appeal are not to be equated with pleadings in court proceedings, or with a notice of appeal from one court to a superior court. They cannot circumscribe or identify the issues on which the appeal will be decided. The Board (or the person holding the oral hearing, if there is one) may go outside them. They cannot be treated with any confidence by the developer as indicative of the scope of the case he will have to meet on the hearing of the appeal. I deduce that the primary purpose of the requirement of stating grounds of appeal in a case such as this is to inform the Board as to the primary matters relied on, so that the procedure for the disposition of the appeal may be decided on. Whether that deducation be correct or not, I am satisfied that the grounds of appeal required are essentially informative. To hold that they must be given as part of, or contemporaneously with, the notice of appeal, would be to attribute a conclusiveness to them which the statute clearly shows they cannot have. I consider that the Board’s practice of informing an appellant in a case such as this, who has not stated grounds in his appeal, that his appeal will not be entertained unless he submits grounds of appeal, is a correct evaluation of the place that grounds of appeal take in the statutory scheme. It would be unduly legalistic, and unfair, if laymen who may have no skill in such matters, but who may be vitally affected by the permission which they wish to appeal against, were to be shut out from appealing merely because their notice of appeal did not state their grounds of appeal, particularly when those grounds of appeal can never be anything more than an opening salvo in the appellate battle. In such circumstances, the requirement of stating the grounds of appeal is essentially informative and directory, and therefore not mandatory. When the appellant in this case furnished grounds of appeal, within a few weeks of his appeal, to the satisfaction of the Board, it did not lie in the mouth of the developer to say that he had been in any way wrong-footed or damnified, or that the spirit or purpose of the Acts and regulations had been breached. In seeking an order of prohibition against the Board, he is endeavouring to benefit from what is no more than a technical breach of a regulation, which breach has been put right by the appellant and has been therefore rightly over-looked by the Board in the interests of justice.
I am glad to find that the statutory requirement of stating grounds of appeal in an appeal under corresponding sections of the English Planning Acts was also treated as being no more than directory by a Divisional Court in Chelmsford Rural District Council v Powell [1963] 1 All ER 150 and by the Court of Appeal in Howard v Secretary of State for the Environment [1974] 1 All ER 644.
It follows from the foregoing that I would dismiss this appeal.
The State (Genport Ltd) v An Bord Pleanala
1981 No. 523 SS
High Court
1 February 1982
[1983] I.L.R.M. 12
(Finlay P)
FINLAY P
delivered his judgment on 1 February 1982 saying: This is an application to make absolute notwithstanding cause shown a conditional order of certiorari made on 19 November 1981 directed to the respondents to bring before the court an order made by them on 4 November 1981 for the purpose of being quashed. The application came before me on 19 January 1982 and was heard on affidavit and I reserved judgment.
The facts out of which the application arises are not in dispute on the affidavits before me and may thus be summarised.
The prosecutors are a limited liability company who are the lessees in possession of a premises known as Sachs Hotel situate at Morehampton Road in the City of Dublin. Prior to 28 May 1981 they applied to the Dublin Corporation for permission pursuant to the provisions of the Planning Acts to retain a certain extension to their premises at Sachs Hotel which had been erected without planning permission. This application was refused by a decision made by the planning authority on 28 May 1981.
The prosecutor employed a firm of Architects and Town Planners, Messrs. Keaney, Quinn and Partners to lodge and prosecute an appeal against this *13 decision to the respondent and by letter of 22 June 1981 that firm appealed against the decision, identifying the decision and the location of the premises concerned in the following words:
Dear Sirs,
I refer to the above decision dated 28 May 1981, ref PL 394, Reg. No. 1138/81 and wish hereby to lodge formal notice of appeal. Grounds of appeal will be furnished in due course. I enclose a cheque for 10.00.
That letter was acknowledged by the respondents by letter dated 24 June 1981 which having acknowledged the letter and the payment of the deposit stated as follows:
Art. 36 of the Local Government (Planning and Development) Regulations 1977 requires that the grounds of appeal must be stated when an appeal is made. Accordingly, you are requested to forward a statement of the grounds on which your appeal is based. Unless this statement is received without delay the Board will be obliged to proceed with the determination of the appeal.
No reply was made to that letter and a further letter of 14 July 1981 was sent under registered post by the respondents to the architects as follows:
A Chara,
I have been asked by An Bord Pleanala to refer to the above-mentioned appeal and in particular to your letter of 22 June 1981 in which you indicated that it was intended to make a further submission to the Board about the appeal. If you wish any such submission to be taken into account by the Board in its consideration of the appeal, please forward it to the Board within 14 days from the date of this letter otherwise the Board will be obliged to determine the appeal on the basis of the information available to it.
There was no reply to that letter nor were any submissions made on behalf of the prosecutor within the period of 14 days. On 6 August 1981 the architects wrote to the Board in the following terms:
Dear sirs,
We refer to the above appeal and wish to advise you that we are withholding detail grounds of appeal as there are still third party objections being received. We will contact you further in due course.
That letter was acknowledged by the Board in the following terms:
An Bord Pleanala has received your letter dated 6 August 1981 relating to function rooms at Sachs Hotel, the contents of your letter have been noted.
In the meantime, objections were apparently received by the Board from third parties and on receipt of each of them or of any letter concerning the appeal, a copy of it was transmitted to the architects who were acting as agents of the prosecutor, each of them apparently being accompanied by a letter in this form:
Enclosed for your information is a copy of correspondence received from (blank) *14 about the above-mentioned appeal but it is not necessary for you to furnish any comments on the correspondence, you may do so if you wish. Any such comments should be forwarded at an early date if you wish to have them taken into consideration when the appeal is being determined.
The dates on which documents or correspondence were transmitted accompanied by such a letter are as follows:
3 July 1981
2 September 1981
6 July 1981
9 September 1981
7 July 1981
11 September 1981
15 July 1981
16 September 1981
17 July 1981
5 October 1981
29 July 1981
11 October 1981
6 August 1981
20 October 1981
11 August 1981
22 October 1981
13 August 1981
27 October 1981
20 August 1981
No reply was made by or on behalf of the prosecutor to any of this correspondence nor were any grounds of appeal or submissions ever sent by them to the Board further to the previous correspondence which I have quoted. On 4 November 1981, the Board reached a decision refusing the permission sought in the appeal and in effect confirming the order of the planning authority. By letter dated 5 November 1981 notice of the making of this decision and a copy of it was sent to the architects acting on behalf of the prosecutor.
A further letter dated 30 October 1981 opposing the application of the prosecutors was received by the respondent Board and transmitted by them on 3 November 1981 with a letter merely informing the prosecutor of the fact that it had been received. On the evidence contained in the affidavit of Mr Ryan filed on behalf of the respondents, I am quite satisfied that this letter never came before the board and did not constitute any part of the information on which they reached their decision on 4 November 1981 though it had been received by some of the administrative officers of the Board earlier than that date. The fact therefore that there was no opportunity in the prosecutor to deal with the contents of this letter is irrelevant to the validity of the decision of the Board.
On these facts, I have come to the conclusion that the following legal propositions arise.
1. Having regard to the decision of the Supreme Court in The State (Elm Developments) v An Bord Pleanala [1981] ILRM 108 I am satisfied that the notice of appeal served in this case was a valid notice of appeal notwithstanding the absence of grounds delivered with or immediately after it. No contention was made before me by either of the parties to any other effect.
2. I am satisfied that as a matter of general law An Bord Pleanala carrying out a quasi-judicial function would have an obligation to take reasonable steps to ensure that every party interested in any application before it should be aware of the submissions or representations made by any other party; should have a reasonable opportunity of replying to them; and should have a general reasonable opportunity of making representations to the Board.
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3. Those general obligations of the Board arising from the requirements of natural justice are indeed to be found implemented in part at least by ss. 17 and 18 respectively of the Act of 1976. S. 17 permits the Board in deciding an appeal to take into account matters other than those raised by the parties to the appeal providing that the matters are brought to the notice of those parties and they are accorded an opportunity of making observation thereon to the Board. Under s. 18 where the Board is of opinion that an appeal is vexatious or unnecessarily delayed by any party it may serve a notice on the party stating that it will at a time after the day specified in the notice which being a day which is not less than 7 days after the service of the notice, without further notice to the party, determine the appeal notwithstanding the fact that no submission has been made to the Board by the party in relation to it.
S. 17 applies only to matters other than those raised by parties to the appeal and parties to the appeal as defined in regulation 35 of the Local Government (Planning and Development) Regulation 1977, SI No. 65 of 1977, in effect include the appellant, the planning authority and persons who had objected to the application for permission who would accordingly have been served with notice of the order made by the planning authority.
4. I am quite satisfied that the letter written on behalf of the Board on 14 July 1981 which I have already quoted was a complete compliance by them with the requirements of s. 18 of the Act of 1976 and that if they had, as they indicated they would, proceeded 14 days after the date of that letter to determine the appeal (and that would of course have been at a period prior to 6 August 1981) that their decision could not validly be challenged in any court. I am also satisfied that the form of letter which they sent to the prosecutors architects with each of the objections and letters which they received concerning this appeal was insofar as the parties communicating to the Board were persons other than parties to the appeal within the meaning of the regulation an adequate and complete compliance with the provisions of s. 17 of the Act. Insofar as there is no section specifically providing the method by which the Board shall discharge their general obligation to give a reasonable opportunity to an appellant such as this prosecutor to deal with representations made by the other parties to the appeal, I am satisfied that the letters were an adequate discharge of that obligation.
5. It seems to me that having regard to the fact that the onus of proof was clearly on the prosecutor not by reason of the fact that they were appellants but rather by reason of the fact that they were applicants for permission, it seems to me that the course indicated by them in their letter of 6 August 1981 whereby they would make no submissions at all not even stating their grounds of appeal until after they had heard all that was being said against their application by other parties was quite unusual and wholly unjustifiable. I find it very difficult to believe that a careful town planner who gave any thought to the procedure which was necessary on an appeal such as this where no oral hearing was sought, should not have realised this was a most unusual and in a general sense unfair procedure to seek to adopt, and should have ensured before relying on a simple letter stating without even asking for permission so to do that this was the course *16 being adopted on behalf of the appellant that the Board was agreeable to such an unusual course.
6. With some hesitation, however, I conclude that the reply to the letter of 6 August 1981 merely noting its contents and not raising on behalf of the Board any objection to the proposal or intention stated in it coupled with the sending for a considerable period after that time of objections and communications and inviting the making of observations by the appellant on them could be construed as a waiver by the Board of the right which they undoubtedly had after a period of 14 days from 14 July 1981 to determine the appeal without further reference to the appellant.
7. In general, the determination of a matter as important as an appeal against a refusal for planning permission should not be concluded in the total absence of representations on behalf of the appellant unless he has unequivocally been called upon to make such representations and has failed to do so. The possibility of an injustice having occurred in this case due to what I would consider to be the unusual and unreasonable attitude of the appellant but to some slight extent contributed to by the further communications sent by the Board to the architects is sufficiently real to drive me to the conclusion that I should quash the order and decision made in this case. It seems to me that the Board should, bearing in mind the entire of the correspondence and communications between the parties, before finally deciding the appeal on 4 November, have written a letter in similar terms to that which they sent on 14 July 1981.
In these circumstances, I am satisfied that the decision should be quashed and that the Board should be directed to enter continuances and to proceed anew to determine this appeal. Having regard to the fact that up to this minute no application has been made by the appellant for an oral hearing and having regard to the fact that one of the communications sent to him to which he made no reply or raised no objection was a communication from the Board to one of the objectors indicating that the matter would be determined without an oral hearing, I am satisfied that there is no obligation of any description on the Board unless in their absolute discretion they decide to do so to hold an oral hearing before determining this appeal. I am also satisfied that they are now entitled to exercise their powers under s. 18 of the Act of 1976 and to fix a time limit of not less than 7 days for the making of all submissions by the prosecutor.
Leefield Ltd v An Bord Pleanála
[2012] IEHC 539
JUDGMENT of Mr. Justice Birmingham delivered on the 4th day of December 2012
1. By order of Murphy J. dated the 30th August, 2012, the applicant obtained leave to seek an order of certiorari of the decision of An Bord Pleanála (the Board) dated the 6th July, 2012, granting planning permission to the first named notice party (O’Flynn Construction) for the construction of a retail store and ancillary developments at Ballincollig, County Cork.
2. The application was for the erection of a Tesco store. The applicant for judicial review is an existing retailer in Ballincollig where it operates a SuperValu store.
3. The applicant’s complaint is that the Board failed to provide adequate reasons and consideration for its decision, and in particular, failed to give adequate reasons for declining to follow the recommendations of its Inspector who had recommended that planning permission be refused.
4. By way of background, it should be explained that O’Flynn Construction lodged a planning application with Cork County Council on the 29th March, 2011, for a retail development at Ballincollig Shopping Centre. The proposed development site is located west of the surface car park serving the existing Ballincollig Shopping Centre and is bounded to the north by an area of woodland, to the south by Ballincollig Main Street and to the west by the Old Fort Road. While Cork County Council is a notice party, it has not participated in the present proceedings.
5. Observations in relation to the planning application were lodged with the Council by the applicant.
6. In the light of what has subsequently developed, it is of some interest to note that by letter dated the 19th May, 2011, Cork County Council sought further information from O’Flynn Construction as to the extent of encroachment onto the woodland and as to pedestrian connectivity to the adjoining Ballincollig Shopping Centre. A response was submitted on behalf of O’Flynn Construction on the 4th July, 2011. Then, on the 27th July, 2011, the Board of Cork County Council decided to grant planning permission subject to 38 conditions. An appeal was lodged with the Board by the applicant, Leefield Ltd., and also by Mr. Damien O’Sullivan and Ms. Janet Walker. Mr. O’Sullivan and Ms. Walker did not participate in the proceedings before me.
7. A detailed submission had been made to Cork County Council on behalf of Leefield Ltd. by Spatial Planning Solutions. In summary, they argued that the proposed retail store would serve to diminish the viability of exiting retail outlets in Ballincollig Town Centre.
8. When the decision to grant planning permission was appealed, An Bord Pleanála appointed Mr. Brendan Wyse, an Inspector, to present a report. Once more, a detailed submission was made on behalf of Leefield Ltd. by Spatial Planning Solutions. The Inspector’s report dated the 29th November, 2011, was a very detailed one. It recommended that planning permission be refused. His decision to recommend refusal of planning permission was based on two factors. These were as follows at p.22:
“(i) Having regard to the layout and form of the exiting town retail area, that is based on a coherent network of retail streets, malls and squares, it is considered that the proposed development, by reason of its layout and design, would not link effectively to the existing town centre and would tend to function as a ‘stand-alone’ entity. The proposed development would not contribute to the creation of an attractive and safe town centre environment for pedestrians or support its continuing development in this regard. The proposed development, therefore, would be contrary to the proper planning and sustainable development of the area.
(ii) Having regard to the significant amenity value of the mature woodland over part of the site and on the adjoining lands the Board is not satisfied that the extent of encroachment proposed, notwithstanding the proposals for replacement planting, can be justified in this instance. It is considered, therefore, that the proposed development would seriously injure the amenities of the area.”
9. While the Inspector’s ultimate decision was to recommend refusal of planning permission and so the report is a very welcome one from the perspective of Leefield Ltd., it is of some interest that the Inspector rejected a number of arguments that had been advanced on behalf of Leefield Ltd. The Inspector rejected submissions on behalf of Leefield Ltd. that the proposed development exceeded the floor space cap for superstores as provided for in the Regional Planning Guidelines. In doing so, the Inspector observed that the proposed development could best be described as a small hypermarket. The Inspector was also satisfied that the proposed site was located within the designated town centre area and was in accordance with the zoning objectives for the area. He specifically rejected the contention put forward on behalf of Leefield Ltd. that the proposal relates to an “edge-of-centre” site. Furthermore, the Inspector was satisfied that the scale of the proposed retail development should be capable of being absorbed within Ballincollig and that it was not excessive.
10. However, notwithstanding the fact that significant arguments advanced by Leefield were rejected, the Inspector firmly favoured rejection. He saw the question of “urban design” as the critical issue on the appeal including, in particular, the issue of connectivity/integration with the existing town centre development and the issue of the design of the proposed building. He felt that the proposed new retail store was very poorly connected to the existing town centre retail area and that the proposed store had essentially been designed as if it was a stand-alone outlet. The Inspector was of the view that the design of the proposed building served to emphasise its separateness from the remainder of the town centre retail area. He felt that the design adopted appeared to be the product of prioritising the requirements of car-borne shoppers to the proposed store over the achievement of good urban design and integration with the existing town centre. Again, so far as the woodland encroachment issue was concerned, he was not satisfied that the encroachment as proposed could be justified and saw this as a further reason for refusing planning permission.
11. The submissions made and the Inspector’s report were considered at a Bord Pleanála meeting held on the 29th June, 2012. By a decision of the 4th July, 2012, the Board granted permission subject to fourteen conditions. The “Reasons and Considerations” section of the decision was as follows:-
“Having regard to the location of the site on the Main Street in Ballincollig, where the site is zoned for town centre uses, the nature of the proposed development, which requires a large floor plate and the significant population catchment the proposed development would serve west of the town centre it is considered that, subject to compliance with the conditions set out below, the proposed development would not adversely affect the vitality and vibrancy of the town centre, would not seriously injure the visual amenities of the area and would be acceptable in terms of traffic safety and convenience. The proposed development would therefore, be in accordance with the proper planning and sustainability of the area.
In deciding not to accept the Inspector’s recommendation to refuse permission, the Board considered that the site was located on the Main Street, was zoned for town centre use and noted that the life of a permitted development east of the site had been extended. The Board was, therefore, satisfied that the development would contribute to the town centre and that pedestrian connections were acceptable.
The Board considered that the mature woodland, though decreased in size would still function as an amenity for the area and that the loss of some trees could be ameliorated by way of conditions.”
The applicant categorises the reasoning of the Board as expressed in its decision as terse and perfunctory and says that the decision does not in any way explain how the Board reached a contrary decision to that of its Inspector. The applicant complains that so far as the first reason the Inspector had for recommending refusal that the Board’s decision does not properly engage with the reasoning of the Inspector. The applicant protests that the decision of the Board does not in any way explain how the Board reached a contrary decision to that of its Inspector. It is said that it remains entirely unclear how the Board reached the conclusion that it did.
12. In the course of an affidavit sworn in support of the applicant by Mr. David Moore, planning consultant of Spatial Planning Solutions, Mr. Moore comments that as a planner, he has no idea how the Board reached their decision, he has no way of knowing how they in fact resolved the Inspector’s concerns, whether they adequately addressed their minds to the issues raised or, whether there were good reasons for not following the Inspector’s recommendations.
The Statutory Provisions
13. Section 34(10) of the Planning and Development Act 2000 provides as follows:-
“(10)(a) A decision given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in—
(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.”
In summary, the obligation on the Board is to state the main reasons and consideration on which the decision was based, and insofar as conditions are imposed state the main reasons for the imposition of such conditions and insofar as this was a case where the Board was differing from its Inspector, there was an obligation to indicate the main reasons for not accepting the recommendation in the Inspector’s report.
14. There have been quite a number of cases in recent times where decisions have faced challenge on the basis that the reasons provided were inadequate. Indeed, I have given two judgments myself on this topic namely, Mulhaire v. An Bord Pleanála [2007] IEHC 478 and Sweetman v. An Bord Pleanála [2009] IEHC 599.
15. Given the frequency with which cases have been brought before the courts in recent times raising issues about the adequacy of reasons that were provided, it is scarcely surprising that at this stage there is little disagreement about the legal principles that are applicable and the real dispute centres on how those principles are to be applied in practice. Indeed, the frequency with which complaints are made that the reasons set out for a decision are inadequate bring to mind the observations of Simon Brown J., who dealing with a reasons challenge in The London Residuary Body v. The Secretary of State for the Environment & Ors. [1988] J.P.L. 637 at 646 and 647 observed as follows:-
“The duty of the Secretary of State to give reasons arises under rule 13(1) of the 1974 Inquiry Procedure Rules. As to the nature of the obligation the authorities are clear; see particularly Re Poyser v. Mill’s Arbitration [1964] 2 Q.B. 467 and Westminster Council v. Great Portland Estates plc [1985] 1 A.C. 661 at p. 673. In all cases the reasons had to be intelligible, proper and adequate. They could be briefly stated but they had to deal with the substantial points that had been raised. A decision would only be challengeable for breach of rule 13 if there was something substantially wrong or inadequate in the reasons given. Very often this ground was invoked in a last desperate effort to unseat a decision when all else failed. It was a basis of challenge which should be advanced sparingly, scrutinised critically and not readily acceded to. That certainly was the approach to be adopted in the general run of cases.”
16. In the course of his judgment in the case of O’Neill v. An Bord Pleanála [2009] IEHC 202, Hedigan J. at para. 24 and subsequent paragraphs sought to distill the principles that emerge from earlier cases. He did so in the context of a challenge to a decision of An Bord Pleanála to grant permission for a craft and retail centre, including a mixture of restaurants and retail outlets at Laragh East. It is noteworthy that the case was concerned only with the obligation of An Bord Pleanála to explain its decision to reject the recommendations of the Inspector. The applicant for judicial review in that case had not been granted leave to impugn the reasons provided by the respondent, An Bord Pleanála, to justify its decision generally. In a situation where the case was really about scale and whether, as Hedigan J. put it, the proposal was too big and looked too big for the location in question, it is worth considering the reasons and considerations that were put forward in that case. The reasons and considerations were in these terms at para. 18:-
“Having regard to the location of the site at the edge of the village of Laragh, the tourist related nature of the development and the availability of natural screening, it is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of the area, would be acceptable in terms of traffic safety and convenience and would be in accordance with the current County Development Plan for the area and the Regional Planning Guidelines for the Greater Dublin Area 2004 – 2016. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area.
In deciding not to accept the Inspector’s recommendations to refuse permission, the Board considered that the serious concerns relating to size were dealt with in the reduced floor area submitted to An Bord Pleanála on the 14th day of June, 2005, and considered that the natural screening on the site and the proposals for landscaping the development would ensure assimilation of the development.”
17. The question of scale emerges more clearly if one considers that the planning application as originally submitted was for a proposed development of 3,257sqm. When permission was granted based on a revised plan it was in respect of a development of 2,957sqm, a mere 300sqm less than the original proposal. In contrast, the Inspector who had recommended rejection of the permission had offered as an alternative to outright rejection a dramatic reduction in floor space to no more than 600sqm. If one has regard to the nature of the controversy that was in issue in the Laragh case and that is at issue in the present Ballincollig case and compares the reasons and considerations offered in each, then at first blush it might seem that the reasons and considerations in the present case compare favourably with what passed muster in the earlier case.
18. From the exercise engaged in by Hedigan J. and from the earlier decisions, there are a number of matters that emerge clearly. First of all, it is not the case that the onus on An Bord Pleanála is a burdensome one. On the contrary, it has been described by O’Neill J. in Grealish v. An Bord Pleanála [2007] 2 IR 536 at p. 553 as a “very light one, one could even say almost minimal” albeit in a situation where he was making the point that light as the obligation was it had not been fulfilled. The concept of the “main reasons” for a decision will vary according to the circumstances of each individual case. The obligations such as they are relate to the main reasons and it is not necessary to deal with all subsidiary reasons that may have come into play. It has long been established that there is no obligation on an administrative body to provide a discursive judgment. See the observations in that regard of Murphy J. in the case of O’Donohue v. An Bord Pleanála [1991] I.L.R.M. 750. It follows that the respondent Board is not obliged to engage in a lengthy review or analysis of its own reasoning when communicating its decision. It is also clear that the adequacy of reasons should be assessed from the perspective of an intelligent person who has participated in the proceedings to date and is aware of the broad issues involved. The reasons should provide a certain minimum standard of practical enlightenment. In that regard in Mulholland v. An Bord Pleanála [2006] 1 IR 453, Kelly J. indicated that what was required of reasons was that they would be sufficient to (1) give to an applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision, (2) arm the applicant for such hearing or review and, (3) enable the applicant to know if the decision maker has directed its mind adequately to the issues which it was required to consider, (4) put the courts in a position to review the decision. Applying those principles which are now well established to the present case, it seems to me to be the case that the reasons provided by the respondent could certainly not be described as discursive, though there was no requirement to provide a discursive judgment. Neither, would the reasons be described as elaborate but again, elaborate reasons are not required. It seems to me that the reasons provided are brief certainly, but are concise and focused. In my view the reasons offered are more than adequate. It seems to me that any informed reader of the reasons and consideration section would be left in no doubt that in relation to the connectivity/integration issue that the Board was having regard to the location of the proposed site on the Main Street in Ballincollig on a site that is zoned for town centre uses. It does seem to me that where an issue arises in relation to the extent to which a proposed development integrates effectively into an existing town centre that questions of location and zoning are always likely to be central to any consideration. It appears that the Board was also mindful of the requirement of what was described as a large floor plate and to the fact that a significant population catchment to the west of the town centre would be served by the proposed development. This led the Board to say that subject to compliance with the conditions that it was imposing that the proposed development would be in accordance with the proper planning and sustainable development of the area. Dealing specifically with the Inspector’s recommendation for a refusal, the Board referred once more to its location and zoning. So far as the woodland issue is concerned the reason given could, I think, be fairly described as terse. However the question posed for consideration was a straightforward one. The proposed development was one that was going to impact on the woodland and the question was whether the scale and severity of the impact could be tolerated. The Inspector stated clearly and succinctly his view that the level of encroachment could not be justified, while the Board acknowledged that there was an impact on the woodland but was of the view that the extent of the impact was not such as to prevent the woodland area from continuing to function as an amenity. Once the Board had decided to differ with its Inspector there was really little more to be said. The conditions imposed by the Board when granting permission provide further evidence, if such is needed, that the Board was fully conscious of the Inspector’s concerns in relation to woodland and sought to ameliorate the situation.
19. In Mulhaire v. An Bord Pleanála [2007] IEHC 478 I commented as follows:-
“Here, if one has regard to the decision and the conditions and reasons, it is clear, therefore, that the Board has applied its mind to the issues before it. Indeed, the reasoning of the Board clearly emerges from the decision with the attached conditions. Mr. Mulhaire may, understandably, be very aggrieved at the outcome, particularly, as his arguments had carried the day before the planning authority, and with the Inspector, but he cannot be left in any doubt as to why the decision went against him.”
20. Save that the arguments advanced by Leefield had not persuaded the planning authority those remarks apply with equal force. An informed and intelligent observer could have been left in no doubt as to what the issues were on the planning appeal and in absolutely no doubt as to the view formed on the issues by An Bord Pleanála. Understandably, Leefield may not like the fact that its arguments did not carry the day but it can have no real doubt as to why it lost and why An Bord Pleanála reached the decision it did. Leefield may not like that decision, may think that the decision is wrong, may even go so far as to believe that the decision was, in a legal sense irrational, but they cannot be in any doubt why their arguments failed to carry the day.
21. Counsel on behalf of the applicant has disavowed any intention to seek a discursive judgment accepting that his client is not entitled to one. However, it seems to me that what emerges from the written and oral submissions is that the applicant in fact seeks something that is very much of that order. In particular, one has the sense that the applicant would have wished to see An Bord Pleanála engage in a detailed debate with its Inspector and engage in a point by point refutation of the Inspector’s views and conclusions. However, there is no obligation on the Board to embark on such an exercise. In summary then it is my view that the reasons and consideration section is more than sufficient to meet the statutory obligations and accordingly, I must refuse the applicant the relief that it seeks.
Dalton v An Bord Pleanala
[2020] IEHC 27 (28 January 2020)
JUDGMENT of Mr. Justice Denis McDonald delivered on 28 January, 20201. In these proceedings, the applicant seeks an order quashing a decision of the respondentmade on 14th March, 2019 to reject, as invalid, an appeal filed by the applicant with therespondent against a decision of Dublin City Council (the first named notice party) togrant permission for a residential development at Parkside, Balgriffin Park, Dublin 17.Receipt of the appeal in question had initially been accepted by the respondent withoutobjection. However, subsequently, the respondent wrote to the applicant to inform himthat, on further examination of the appeal, it was noted that the names and addresses ofthe appellants were not stated and informing him that, as a consequence, the appeal wasinvalid. In support of its position, the respondent invoked the provisions of ss. 127 (1)(b) and 127 (2) of the Planning and Development Act, 2000 (“the 2000 Act”). Therespondent maintained that the only name and address given on the appeal was that ofthe applicant but that it was clear that he was acting on behalf of others in making theappeal and their names and addresses were not given anywhere in the appeal document.2. The applicant maintains that the decision to reject the appeal is invalid on a number ofgrounds:-(a) In the first place, the applicant contends that the appeal complies with therequirements of s. 127 of the 2000 Act;(b) Without prejudice to his primary contention that the appeal complied with therequirements of s. 127, the applicant maintains in the alternative that, at worstfrom his perspective, there was substantial compliance with the requirements of s.127 and that any non-compliance was of a technical or trivial nature and cannotrender the appeal invalid;(c) Thirdly, the applicant contends that the decision of the respondent to reject theappeal was taken in breach of his right to fair procedures and is contrary to naturalor constitutional justice. In making this case, the applicant argues that he shouldhave been given an opportunity to make submissions to the respondent before thedecision to reject the appeal. In addition, the applicant sought to argue that thePage 2 ⇓initial acceptance by the respondent of the appeal is relevant to the issue offairness. Although not pleaded precisely in these terms, the applicant, in thecourse of the hearing appeared to make a case that, in some way, the respondentwas estopped from rejecting the appeal.Section 127 of the 2000 Act3. Before I attempt to set out the underlying facts, it may be helpful, at this point, to referto the relevant provisions of s. 127 of the 2000 Act. Section 127 sets out certainrequirements which must be complied with for the purposes of an appeal to therespondent. Insofar as relevant, s. 127 provides as follows:-“(1) An appeal … shall—(a) be made in writing,(b) state the name and address of the appellant … and of the person, if any,acting on his or her behalf,(c) state the subject matter of the appeal …,(d) state in full the grounds of appeal …and the reasons, considerations andarguments on which they are based,(e) in the case of an appeal under section 37 by a person who made submissionsor observations in accordance with the permission regulations, beingaccompanied by the acknowledgment by the planning authority of thesubmissions or observations,(f) …(g) be made within the period specified for making the appeal ….(2) (a) An appeal … which does not comply with the requirements of subsection (1)shall be invalid.…(3) Without prejudice to section 131 or 134, an appellant … shall not be entitled toelaborate in writing upon, or make further submissions in writing in relation to thegrounds of appeal … stated in the appeal … or to submit further grounds of appeal… and any such elaboration, submissions or further grounds of appeal … that is orare received by the Board shall not be considered by it.(4) …(5) An appeal … shall be made—(a) by sending the appeal … by prepaid post to the Board,Page 3 ⇓(b) by leaving the appeal … with an employee of the Board at the offices of theBoard during office hours (as determined by the Board), or(c) by such other means as may be prescribed.”4. It will be necessary, in due course, to consider the relevant case law in relation to s. 127and its predecessor provision namely s. 4 of the Local Government (Planning andDevelopment) Act, 1992 (“the 1992 Act”). It should be noted, at this point, that s. 127(1) (b) is in somewhat different terms to s. 4 (1) (b) of the 1992 Act. Under the latterprovision, the name and address of the appellant was required to be given. There was noreference to any requirement to provide the name of the person (if any) acting on theappellant’s behalf. As will be clear from the provisions of s. 127 (1) (b) quoted above, s.127 (1) (b) now requires that both the name and address of the appellant be given andalso the name of any person (if any) acting on the appellant’s behalf.5. Before considering the proper interpretation of s. 127 and the relevant authorities, it isnecessary to set out the relevant facts.Relevant facts6. In August 2018 the second named notice party Cairn Homes Properties Ltd (“Cairn”)submitted an application for planning permission to Dublin City Council (“the Council”) fora residential development at Parkside, Balgriffin, Park Lane, Dublin 17. The relevantdevelopment site was described in the planning application as:-“…located south-west of Parkside Phase 2C (currently under construction) west ofSt. Michael’s Cottages, south-east of Parkside Square, the neighbourhood park andthe green link pedestrian/cyclist route between Belmayne Avenue and the Hole inthe Wall Road”.7. On 24th September, 2018 the applicant made a submission to the Council in which heexpressed concern that the development appeared to involve an encroachment into anumber of properties at St. Michael’s Cottages. In the submission, concern was alsoexpressed in relation to a proposed entrance road which he said would be seriouslydetrimental to the development potential of some of the cottages. The submission alsoraised a concern in relation to the proposed height of the scheme along the westernboundary of the site the subject of the application.8. There are a number of features of the submission which should be kept in mind:-(a) In the first place, the applicant describes himself as a “broker advocate”;(b) Secondly, the submission commences by referring to the applicant’s clients. Theopening words of the submission are in the following terms:-“On behalf of my clients who are all of the owners/residents of the St.Michael’s Cottages… as per the attached … map…. I also wish to inform youthat I am also their exclusively appointed development broker … and IPage 4 ⇓advocate for them on development issues and specifically with interestedparties in the development of their property. To that end each owner hassigned a consent letter to Dublin City Council (as per attached sample letter‘B’) with a view to getting a developer to undertake a SHD developmentstrategy for St. Michael’s Cottages area. As such I wish to make thefollowing submission and observations…. These concerns have beenexpressed to me by some owners …”;(c) It is clear from the substance of the concerns expressed in the submission that theprincipal focus of the submission is the impact of the development on St. Michael’sCottages.(d) In para. 4, the submission refers again to “my clients”. In para. 5 the applicantinformed the Council that:“As a representative for all the residents/owners of all St. Michael’s CottagesI have been engaging with large developers in discussing developmentstrategies for the entire St. Michael’s area.”In the same paragraph he referred to an abortive approach that was made to Cairnand the paragraph concludes by stating that:“That of course is their prerogative and we respect that, however, we remainopen to working with adjoining developers on interconnectivity planning ofboth schemes and particularly in the future development of St. Michael’sCottages as there is now a unified approach to its development”.9. On 1st October, 2018 the Council wrote to the applicant to acknowledge receipt of thesubmission. This is an acknowledgment of the kind mentioned in s. 127 (1) (e) of the2000 Act which must, in the event of an appeal, be furnished to the respondent with theappeal. The letter was addressed as follows:“Brendan Dalton for residents St. Michael’s Cottages”.10. On 4th January, 2019 the Council decided to grant permission for the development byCairn. Thereafter, on 31st January, 2019 the applicant submitted an appeal to therespondent against the decision to grant permission. There are a number of features ofthe appeal which are relevant in the context of the submissions by the parties in relationto compliance with s. 127. These include:-(a) The opening paragraph of the appeal states that the appeal has been “prepared andsubmitted by Brendan Dalton, Dalton Brokers… on behalf of the owners/residents ofSt. Michael’s Cottages …. For ease of reference, a copy of our objection lodged atplanning application stage is enclosed… and should be read in conjunction with this… appeal”;(b) In the second paragraph of the letter, the applicant informed the respondent that:Page 5 ⇓“I am also their exclusively appointed development broker for the residentsand landowners, and I advocate for them on development issues andspecifically with interested parties in the development of their properties. Tothat end each owner has signed a consent letter to Dublin City Council.. witha view to getting a developer to undertake a SHD development strategy forSt. Michael’s Cottages area”;(c) In the introduction to the appeal, Mr. Dalton states that:-“I wish to make the following grounds of appeal to the above application … byCairns… on behalf of the owners/residents of S. Michael’s Cottages. Theirconcerns were expressed at planning application stage by the applicant andhave been left with no option but to object and appeal as they are strongly ofthe view that the development does not consider the concerns of the St.Michael’s Cottages residents”;(d) In s. 3.1 of the appeal, the applicant addressed the question of encroachment ofthe development onto certain of the properties within St. Michael’s Cottages. Thissection of the appeal commences with the words:“There is confusion regarding the inclusion of our client’s properties withinthe submitted documentation … “;(e) Section 3.3 of the appeal suggests that a more integrated development approach isrequired. In this section of the appeal, the applicant stated:-“This is a continuing debacle for the future development of the area eventhough our clients have continually reiterated their interest in adopting ajoined-up approach in redeveloping the area…. It is suggested that theapplicant should have committed details to our clients subject to writtenapproval prior to the lodgement of the application in order to encompass ourclient’s lands as part of a wider development strategy. Our clients areagreeable to viewing an integrated approach in the development of the areawhich encompasses their lands in the interest of the sustainable futuredevelopment of the wider community”.11. It is clear from the opening paragraph of the appeal (quoted in para. 10 (a) above) thatthe applicant intended that it should be read with the earlier submission made to theCouncil. It is also clear that both documents make frequent references to “clients” of theapplicant namely the unnamed owners and residents of St. Michael’s Cottages.Furthermore, as noted previously above, it is equally clear both from the appeal to therespondent and from the original submission to the Council, that the thrust of theobjection to the proposed development was based on concerns which were specificallyreferable to St. Michael’s Cottages and, more particularly, to the development potential ofSt. Michael’s Cottages.Page 6 ⇓12. On 1st February, 2019 an officer of the respondent completed a “Validation Checklist”which suggested that the appeal was valid and that the relevant name and address wasavailable together with the name and address of the “Agent… if engaged”. This wasplaced within a file cover where the appellant was named as: “Brendan Dalton forResidents St. Michael’s Cottages”.13. On 5th February, 2019 the respondent sent an acknowledgment of the appeal to theapplicant. This was addressed to him as “Brendan Dalton for Esidents’ (sic) St. Michael’sCottages”. The letter stated that the respondent had received the appeal and wouldconsider it under the Planning and Development Acts, 2000 to 2018. On the same day,copies of the appeal were also sent to Cairn and the Council.14. On 28th February, 2019 McGill Planning, on behalf of Cairn, responded to the applicant’sappeal. Although it is clear from the response submitted by McGill Planning that Cairnunderstood that the appeal had been lodged by the applicant on behalf of the owners andresidents of St. Michael’s Cottages, no issue was raised by McGill Planning in relation tocompliance with s. 127 (1) (b) of the 2000 Act.15. On 8th March, 2019 an executive officer of the respondent furnished a memorandum to asenior executive officer in which she stated:-“The Board received a third party appeal in relation to the above-mentionedproposed development on 31st January, 2019 from Brendan Dalton acting on behalfof the owners/residents of St. Michael’s Cottages.Having further examined the appeal it is considered that the appeal is invalid. Thenames and addresses of the appellants have not been provided in accordance withs. 127 (1) (b)….In this regard a letter to issue to the agent acting on behalf of the appellantsadvising of the invalid appeal. A letter to issue to the planning authority and theapplicant. A fee refund to be prepared.”16. There is a handwritten response from the senior executive officer noted on the samememorandum. This handwritten response is dated 11th March, 2019 and is in thefollowing terms:-“Further to the above memo …, please issue letter and refund to Dalton Brokersinforming them that the appeal is invalid, also informing P.A. & the applicant”.17. On 11th March, 2019, a second “Validation Checklist” was created by an officer of therespondent. This is in similar terms to the previous checklist described in para. 12 abovesave that there is now a “No” entered in respect of the name and address of theappellants.18. On 14th March, 2019 the respondent wrote to the applicant (again addressed to “BrendanDalton for Residents’ St. Michael’s Cottages”). The letter stated:-Page 7 ⇓“I have been asked by An Bord Pleanála to refer further to the above-mentionedappeal lodged by you on behalf of the owners/residents of St. Michael’s Cottages.Section 127 (1) (b) of the 2000 Act… provides that an appeal shall state the nameand address of the appellant and of the person, if any, acting on his or her behalf.On further examination of your appeal it was noted that the names and addressesof the appellants were not stated and, it is regretted, must be regarded as invalid inaccordance with s. 127 (2) (b) (sic) of the Act. To lodge a valid appeal, you mustcomply with ALL of the requirements of s. 127.The documents lodged by you and a cheque for the amount lodged is enclosed”.19. Letters were also sent on 14th March, 2019 by the respondent to the Council and to Cairninforming them that, following further examination of the appeal, it had been noted thatthe names and addresses of the appellants were not included and the appeal had“therefore, been declared invalid as the criteria set out under section 127 (1) (b) … wasnot met”.20. On 20th March, 2019 the applicant wrote to the respondent in response to the letter of14th March, 2019. In that letter he contested the suggestion that the appeal did notcomply with s. 127. In that letter he stated:-“…I would strongly advise that I lodged the third-party objection to Dublin CityCouncil, a copy of which was submitted as part of the appeal, and that I wasentitled to then lodge the third-party appeal to An Bord Pleanála, which I duly did.The opening line of the appeal confirmed by (sic) name and address in accordancewith section 127 of the Act.The confusion may have arisen as the Board was of the opinion that all of thedetails for the residents of the St. Michael’s Cottages should also have beenincluded. However, this is not the case. As stated in the appeal documentation, Iact essentially as their Management Company for development purposes and assuch have the authority to lodge objections and appeals to developments that mayaffect the area. This would be the same situation as would arise with a registeredmanagement company.While I submitted a third-party objection to Dublin City Council against theproposed development, it is important to note that residents of St. Michael’sCottages also submitted third party objections on an individual basis. I thenfollowed through on my objection with a third party objection to the Board whichhighlighted my serious concerns with the proposed development.It is likely that some confusion may have arisen with An Bord Pleanála on thewording of the appeal, which may have resulted in the appeal being invalidated. Iam of the considered opinion that while I do represent the views of residents of St.Michael’s Cottages, the provision of my own contact details within the appealPage 8 ⇓documentation was sufficient to ensure that the appeal was in accordance withSection 127 (1) … and that the appeal should not have been invalidated.I trust that you will take the above into consideration and come to the reasonabledecision that my appeal was invalidated in error that you will see fit to rectify thisdecision by accepting the appeal as valid. …”21. The submission on the part of the applicant was rejected by the respondent. On 11thApril, 2019, the respondent emailed the applicant to inform him that the respondent hadre-examined the appeal documentation and was satisfied that the appeal must bedeemed invalid as it did not comply with the requirements of s. 127. That was the end ofthe correspondence between the applicant and the respondent. The present applicationwas subsequently launched on 8th May, 2019 and on 20th May, 2019, Noonan J. made anorder giving the applicant leave to apply for the relief now claimed by way of judicialreview on the grounds pleaded in the applicant’s statement of grounds.The grounds of challenge22. The grounds of challenge are summarised in para. 2 above. The principal issue whicharises relates to the question of compliance with s. 127 of the 2000 Act. For that reason,I address that issue first. To the extent necessary, I will then consider, in turn, theremaining issues outlined in para. 2 above.Compliance with s. 127 (1) (b)23. The first argument made by the applicant is that there was full compliance with s. 127 (1)(b). It was submitted by counsel for the applicant that, although both the submission tothe Council and the appeal to the respondent used phrases such as “on behalf of”, theapplicant was himself the sole appellant in the appeal to the respondent. He was notmerely acting as an agent but had full powers to essentially stand in the shoes of theowners of St. Michael’s Cottages to take any appropriate steps in the interests ofmaximising the value of those properties. Counsel compared the position of the applicantto the position of the plenipotentiaries negotiating the Anglo-Irish Treaty of 1921. As iswell known, the Irish representatives at the treaty negotiations (who included MichaelCollins and Arthur Griffith) had full powers to sign a treaty without reference back toEamon de Valera, the President of the Irish Republic under the Dáil Constitution of 1919-1922.24. It was therefore submitted on behalf of the applicant that the only appellant was theapplicant himself. In this context, reliance was placed on the acknowledgment of 1stOctober, 2018 sent by the Council to the applicant. It was suggested that, because theapplicant was the only recipient of this acknowledgment, the applicant was the only partywho could make an appeal. In support of this proposition, reliance was placed on s. 127(1) (e) which provides that, in the case of an appeal under s. 37 by a person who madesubmissions to the planning authority, the appeal must be accompanied by anacknowledgment by the planning authority of receipt of the submission. It was urgedthat the acknowledgment here referred solely to the applicant and it was submitted thathe was accordingly the only person who could appeal.Page 9 ⇓25. In addition, the applicant placed reliance on a copy of a document setting out the termsof his engagement by the owners and residents of St. Michael’s Cottages. Under theterms of engagement, the applicant was irrevocably appointed as “our exclusive advocateand broker in the development and sale of our property…together with neighbouringproperty. …”. It is important to note that the copy of this document exhibited by theapplicant does not set out the names and addresses of the relevant owners and residentsfor whom he claims to act.26. The applicant, in his second affidavit, also drew attention to the fact that, in addition tothe submissions made by him to the Council, a substantial number of the occupants of St.Michael’s Cottages had made their own submissions to the Council in their own name.The applicant suggests that the existence of these separate submissions by a substantialnumber of occupants of St. Michael’s Cottages bolsters his position that his submission tothe Council and, more particularly, his appeal to the respondent was made by him in hisown capacity and not on behalf of others.27. Notwithstanding the able submissions of counsel for the applicant, I do not believe thatthere is any plausible basis on which to form the view that the applicant in this case washimself the appellant in the appeal such that it was only necessary to give his name andaddress for the purposes of s. 127 (1) (b). In my view, the language of s. 127 (1) (b) isvery clear. There is a straightforward requirement to state the name and address of theappellant and also the name and address of any person (if any) acting on behalf of anappellant. It is clear from the documents described in paras. 8 and 10 above that theapplicant was acting on behalf of others in pursuing the appeal.28. Section 127(1)(b) very clearly requires that, where a person acts on behalf of anappellant, the name and address of the appellant and of the person acting on theappellant’s behalf must be given. The words “acting on his or her behalf” are very broad.I do not believe that any distinction can be made between a plenipotentiary acting onbehalf of an appellant and an agent with lesser powers acting on the appellant’s behalf.Once there is a person who acts on behalf of another, it seems to me that the relevantrequirement is triggered – namely the requirement to give the names and addresses ofboth the appellant and the person acting on the appellant’s behalf. Whether the personacting on the appellant’s behalf is a plenipotentiary or some lesser form of agent seems tome to be irrelevant. When one considers the material summarised in paras. 8 and 9above (namely the submission to the Council and the subsequent appeal to therespondent both of which are clearly intended to be read together, as the terms of theappeal make plain), it is clear that the applicant was acting on behalf of others who hedescribed as his clients. He was not acting on his own behalf. In accordance with theprinciples laid down in the judgment of McCarthy J. in the Supreme Court in Re. X. J.S.Investments Ltd [1986] I.R. 750 at p. 756, those documents must be construed inaccordance with their ordinary meaning as it would be understood by members of thepublic, without legal training as well as by developers and their agents, unless suchdocuments, read as a whole, necessarily indicate some other meaning. In my view, whenthe documents are read in that way, it is manifestly clear that the applicant was acting onPage 10 ⇓behalf of his clients namely the owners and residents of St. Michael’s Cottages. While Ihave not quoted the entirety of the documents in paras. 8 and 9 above, I cannot seeanything in the remaining passages of the documents which would alter the impressionwhich the quoted passages undoubtedly give that the applicant was acting on behalf ofthe owners/residents. This seems to me to follow from (a) the references to the ownersof St. Michael’s Cottages as the applicant’s (b) “clients”; the use of the phrase in thesubmission to the Council “as a representative for all the residents/owners…”; (c) theexpress use of the words “on behalf of the owners/residents of St. Michael’s Cottages”(emphasis added) quoted more fully in para. 10 (a) above; (d) the explanation in thesecond paragraph of the appeal that the applicant advocates for the owners/residents;and (e) the further reference in the appeal document to the applicant’s “clients”. Takentogether, all of these references create an overwhelming impression that the applicantwas, in truth, acting not on his own behalf but on behalf of the residents or owners of St.Michael’s Cottages.29. I cannot see anything in the terms of engagement which would cause me to take adifferent view. While the terms of engagement appear to envisage that the applicant willbe given a significant measure of autonomy in how he seeks to maximise value for theowners/residents, the document in question nevertheless demonstrates in very clearterms that the appointment of the applicant is to act on behalf of the owner/residents.The opening words of the terms of engagement expressly state that the owner in questionappoints the applicant to be “our exclusive advocate and broker in the development andsale of our property …”. While the words “on behalf of” are not used, the sense isprecisely the same.30. While counsel for the applicant ingeniously sought to suggest that, in some way, thereference in some of the communications to “Brendan Dalton for the residents of St.Michael’s Cottages” should be construed quite differently to “on behalf of”, I cannotaccept that this is so. The meaning of the word “for” used in that way seems to me toequate to the meaning of the term of “on behalf of”. The use of the word “for” in thatway is frequently used to designate that a person is a representative or is acting in arepresentative capacity; in other words, that a person is acting on behalf of another.31. Nor can I see anything in the acknowledgment from the Council that would cause me totake a different view. As counsel for the respondent observed in the course of thehearing, the acknowledgment in question says very explicitly: “Brendan Dalton forresidents …” (emphasis added). Moreover, the acknowledgment must be read inconjunction with the document which is acknowledged therein – namely the submissionitself. As the passage quoted in para. 8 above illustrates, that submission makes veryclear that the applicant was acting on behalf of the owners/residents. Thus, if there wereany doubt about the meaning of the word “for” in the acknowledgment, that doubt isresolved by reference to the submission, the subject of the acknowledgment. For thatreason, it seems to me to be clear that the acknowledgment must itself be interpreted asan acknowledgment to Mr. Dalton on behalf of the owners’ concerned. The fact that someor a great deal of the owners may have lodged their own submissions with the CouncilPage 11 ⇓and received their own acknowledgments does not seem to me to make any difference.At the end of the day, if a decision was made to appeal, a decision would have to bemade as to which of the acknowledgments should be relied on for this purpose. If I amcorrect in my view that the submission was made to the Council by the applicant in arepresentative capacity, then I can see no reason why the owners represented by theapplicant could not rely on that acknowledgment for the purposes of s. 127(1)(e) whetheror not some or all of them had also received acknowledgments directly in response totheir own individual submissions. In either case, the owners/resident concerned would, inmy view, be the person who made the submission. It is trite law that the act of an agentis the act of his or her principal.32. In these circumstances, I have come to the conclusion that the provisions of s. 127(1)(b)were not complied with in the appeal furnished to the respondent by the applicant. In myview, s. 127(1)(b) required that both the name and address of the applicant and of theowners/residents of St. Michael’s Cottages on whose behalf he acted were required to begiven. Since the names and addresses of none of the owners/residents appear on theappeal or in any of the other documents submitted to the respondent, there was a failureto comply with the statutory requirement.The consequences which flow from the failure to comply with s. 127(1)(b)33. Section 127(2)(a) provides that an appeal which does not comply with the requirementsof s. 127(1) “shall be invalid”. The subsection uses the word “shall”. Importantly, s. 127(1) (b) (which contains the relevant requirement) also uses the word “shall”. There isoften a debate as to whether such a provision should be treated as truly mandatory ormerely directory. As Henchy J. observed in the Supreme Court in the State (ElmDevelopments Limited) v. An Bord Pleanála [1981] ILRM 108 at p. 110:“Whether a provision in a statute … which on the face it is obligatory (for example,by the use of the word “shall”), should be treated by the courts as truly mandatoryor merely directory depends on the statutory scheme as a whole and the partplayed in that scheme by the provision in question. If the requirement which hasnot been observed may fairly be said to be an integral and indispensable part of thestatutory intendment, the courts will hold it to be truly mandatory, and will notexcuse a departure from it. But if, on the other hand, what is apparently arequirement is in essence merely a direction which is not of the substance of theaim and scheme of the statute, non-compliance may be excused.”34. In O’Connor v. An Bord Pleanála [2008] IEHC 13, Finlay Geoghegan J. had to considerwhether the use of the word “shall” in s. 127(1)(b) should be regarded as mandatory ormerely directory. She came to the conclusion that the requirement to furnish the addressof the appellant was a mandatory obligation. Ultimately, her observations on this issueare obiter. This is because the relevant address was shown on the acknowledgment ofthe planning authority in that case and, in accordance with the decision of Quirke J. inO’Reilly Brothers (Wicklow) Limited v. An Bord Pleanála [2006] IEHC 363, FinlayGeoghegan J. was able to conclude on that basis that the requirement of s. 127(1)(b)had, in fact been complied with. The acknowledgment in question formed part of thePage 12 ⇓appeal. Nonetheless, although her observations are obiter, the views of FinlayGeoghegan J. are of great assistance in the present case given the very carefulconsideration which she gave to the issue. At p. 4 of the judgment she referred to theSupreme Court decision in Elm Developments Limited, and continued at p. 5 in thefollowing terms:“I am satisfied that, having regard to the words used by the Oireachtas in s. 127and the purpose of the requirement in s. 127(1)(b), the Court should treat therequirement to state the address of the applicant as truly mandatory. It followsfrom this conclusion that neither the Court nor the respondent may excuse non-compliance with the requirement in s. 127(1)(b) that the appeal state the addressof the appellant on a de minimis basis. I agree with a similar view expressed byKelly J. in McAnenley v. An Bord Pleanála [2002] 2 I.R. 763 at p. 776.It also follows from this conclusion that the Court has no discretion to excuse non-compliance with the requirement to state the address in s. 127(1)(b) of the Act of2000 on the basis of an alleged absence of prejudice to the applicant or any otherperson. The position is similar to that stated by the Supreme Court in the judgmentof Finlay C.J. in Electricity Supply Board v. Gormley [1985] I.R. 129, at pp. 156,157:“I am satisfied on the principles laid down in Crodaun Homes Ltd. v. KildareCounty Council [1983] I.L.R.M. 1, and on the true interpretation of s. 26 sub-s. 1, of the Act of 1963, that a challenge to the validity of a planningpermission granted by a planning authority, which is based on non-compliance with the permission regulations, does not depend upon theperson making such challenge being able to demonstrate that the non-compliance directly affected him or her. Such a challenge can properly bemade by any person who is affected by the permission granted and, if madeand if non-compliance is established, the permission is invalid not by reasonof prejudice or disadvantage to the person challenging it but by reason of awant of power and jurisdiction in the planning authority to exercise their rightof granting or refusing permission pursuant to s. 26. …””35. The decision of Finlay Geoghegan J. is consistent with earlier decisions of Kelly J. (as hethen was) in relation to other provisions of the Planning Acts dealing with therequirements for appeals. In Graves v. An Bord Pleanála [1997] 2 IR 205 Kelly J.upheld a decision of the respondent that an appeal was out of time even though it hadbeen handed to a security guard at the offices of the respondent (who, in turn, passed theappeal to an officer of the respondent) within the relevant time period prescribed by s.26(5) of the Local Government (Planning and Development) Act, 1963 (“the 1963 Act”).He did so on the basis that under s. 4(5)(b) of the 1992 Act, there were mandatoryprovisions relating to the lodgement and service of appeals which required that the appealbe left with an employee of the respondent at its offices and which Kelly J. held had to becomplied with strictly. At pp. 214-215 Kelly J. said:Page 13 ⇓“Counsel for the Board … says that the appeal procedure which is prescribed unders. 4 must be complied with strictly. This is so, inter alia because of the rights ofthird parties which may be affected by the bringing of an appeal and a necessity tohave certainty in relation to the matter. In the present case Mr. Graves acceptsthat he cannot prove that the appeal in question was left with an employee of theBoard at the offices of the Board [as required by s. 4 of the 1992 Act]. In fact, thecontrary is the case. The appeal was left with somebody who was not anemployee. Such being so, the appeal was not validly made.I have come to the conclusion that the submissions of the Board in this regard arecorrect. The wording of s. 4, sub-s. 5 of the Act … is in mandatory terms. Itrequires that an appeal be left with an employee of the Board at the offices of theBoard. It appears to me that an appellant who wishes to argue that he has made avalid appeal must have to be able to demonstrate compliance with the statutoryprovision. … Mr. Graves … cannot prove that the appeal was left with an employeeof the Board at the offices of the Board on the day in question. The fact that anemployee of the Board came into possession of the documents on 20th January,1997 does not appear to me to discharge the obligation of the appellant todemonstrate compliance with the mandatory requirements of [the subsection]. Itseems to me that the legislature in enacting [the subsection] prescribed verycarefully the procedure which has to be followed in order to make a valid appeal.The legislature did not content itself with permitting an appeal to be simply left atthe offices of the Board. Rather it required that the appeal be left with anemployee of the Board. An employee of the Board must have the appeal documentleft with him or her personally in order for the appeal to be valid. The mere factthat such an employee fortuitously comes into possession of appeal documentsdoes not, in my view, discharge the onus cast upon an appellant who wishes tomake a valid appeal if such appellant choses the method of service prescribedunder [the subsection]. To permit of a departure from that procedure would notmerely run counter to the statutory provisions but would, in my view, introduce anelement of uncertainty into a procedure which must be construed strictly and rigidlyso as to ensure certainty and the protection of the third party rights. …”36. Subsequently, in McAnenley v. An Bord Pleanála [2002] 2 I.R. 763, an issue arose as towhether the requirements of s. 6 of the 1992 Act were mandatory or merely directory.Under s. 6 of the 1992 Act, a planning authority was required, where its decision wasappealed to the respondent, to furnish certain documents to the respondent within aperiod of fourteen days from the date on which a copy of the relevant appeal wasforwarded to them by the respondent. In that case, there had been a failure on the partof the planning authority to furnish to the respondent a copy of its own decision to grantpermission together with a submission made to it by the Fisheries Board and a number ofother documents furnished to the planning authority in the course of the application forpermission. Kelly J. made an order quashing the decision of the respondent to refuse theapplicant’s appeal against the planning authority’s decision to refuse him planningpermission for a development. Kelly J. did so on the basis that the failure of the planningPage 14 ⇓authority to furnish the documents to the respondent went to the jurisdiction of therespondent. His reasons for taking this approach are set out at p.p. 765-766 as follows:-“It is suggested that [s. 6 of the 1992 Act] is to be interpreted as not creating amandatory obligation on a planning authority. Rather it is said to be permissive.I cannot agree with this proposition. ….I am of the view that the legislature in setting up the statutory scheme of appealsto the Board had in mind that certain documents would be placed before it when itis called upon to exercise its de novo jurisdiction involving an appeal to it from adecision of a planning authority.The obligation to submit these documents is placed on the planning authority. Thesection uses the word ‘shall’. The intent of the legislature is that there should beplaced before the respondent the documentary material as specified which was onthe planning authority file and was before it when it made its decision ….… It is common case that the decision of the [planning authority] was notforwarded to the respondent The respondent did not therefore have the decision ofthe [planning authority] before it when it made its decision on the appeal.It did have a copy of the notification to grant permission. It is said that thisdocument contained all of the material which was contained in the decision itself. …It is argued that this failure to comply with the provisions of … the Act should betreated and excused on a de minimis basis.It is difficult to treat non-compliance with an express statutory requirement on a deminimis basis. The notification of a decision of a planning authority will in all casescontain the essence of the decision itself. Notwithstanding that, parliament hasordained that both should be provided to the respondent. I cannot disregard thisstatutory requirement…”.37. The decision in McAnenley was applied very recently by my colleague Simons J. inSouthwood Park Residents Assocation v. An Bord Pleanála [2019] IEHC 504. As that casehas not been the subject of any discussion at the hearing, I do not propose to consider itin detail. It is nonetheless important to note that it is entirely consistent with the caselaw which was discussed at the hearing and is a further example of a consistent approachtaken by the courts to the interpretation of the 2000 Act and the underlying Planning andDevelopment Regulations, 2001. Citing the observations of Henchy J. in Alf-a-Bet,Simons J. observed that the jurisdiction of the courts to excuse or waive a breach of aprocedural requirement of planning law prescribed by legislation is “severely limited”.38. The decisions in O’Connor, Graves and McAnenley and also the judgment of Simons J. inSouthwood provide strong support for the positon of the respondent and Cairn that s. 127(1) (b) must be construed as a mandatory obligation. While the observations of FinlayGeoghegann J. in O’Connor are strictly speaking obiter, and while neither of the decisionsPage 15 ⇓of Kelly J. in either Graves or McAnenley directly address the provisions of s. 127 (1) (b),of these cases nonetheless constitute a formidable body of authority which stronglysupports the positon taken by the respondent and by Cairn that s. 127 (1) (b) should beconstrued as a mandatory obligation such that any failure to comply with it will render anappeal invalid. However, the applicant has sought to rely on a decision of McMenamin J.in Murphy v. Cobh Town Council [2006] IEHC 324. In that case, An Bord Pleanála (whichwas the second named respondent in the proceedings) rejected an appeal submitted onbehalf of the members of a local action group to a proposed development of a marina inthe port of Cobh. The first respondent (the local Council) acknowledged the objection ofthe action group by a letter which was dated in a very unusual way. The relevant date ofthe letter (30th November, 2004) appeared in what was described in a judgment ofMcMenamin J. as “miniscule print”. No date was placed at the head of the letter oranywhere else in ordinary sized font. Subsequently, the Council granted permission forthe development. The action group was informed of the decision to grant the permissionby a further letter from the Council which again was dated in the same unusual way withthe relevant date appearing in miniscule print. Thereafter, the action group instructedtheir solicitors to appeal to the respondent. The appeal was furnished in time but wasaccompanied by the letter from the Council notifying the grant of permission rather than(as required by s. 127 (1) (e) of the 2000 Act) the acknowledgment of the objection. Theappeal was rejected by the respondent on the grounds that the requirements of s. 127(1) (e) of the 2000 Act had not been complied with. That decision was overturned byMcMenamin J. who held that the failure to comply with s. 127 (1) (e) could be excused ona de minimis basis. The underlying rationale for the decision is set out as follows at p.p.14-16 of the judgment:-“…to any reader, professional or lay, the dating procedure on the … lettersemanating from Cobh Town Council is unwittingly, a trap to the unwary, especiallyso in view of the general similarity in layout and in substance albeit with somedistinctions. It has not been contended that the Board has been detrimentallyaffected in its procedures nor in any decision. The letter and enclosure ispreliminary to any decision. It was furnished within time…. Does the de minimisRule apply?In Ní Chonghaile and Others v. Galway County Council [2004] 4 I.R. 138,Ó Caoimh J. had to consider somewhat similar circumstances in which the ruleshould be applied. That judge declined to grant certiorari against the respondent …in circumstances where it had before it, in the making of a decision, a site mapwhich was not accurate but where the error contained therein was minor, andwhere another map was available to the County Council.… In Ní Chonghaile it was held that the de minimis rule should be applied, in thatthe public had not been misled, and that the spirit of the regulation was moreimportant than its letter. While this decision arose in the circumstance where thecourt, on discretionary grounds, declined to grant certiorari, should a distinction inPage 16 ⇓principle … be made between the circumstances of that case and those which arisehere even accepting that there must be strict interpretation and compliance?What occurred here, was that the third, rather than the first, in a series of threealmost identical letters was furnished to the Board. The letter of 11th January2005, as much as that of 30th November 2004, included the relevant informationnecessary for the Board to proceed. One cannot ignore either the fact that, at onestage, the Board fairly took it on itself to point out to the applicant herein that shemight make submissions or observations on foot of the third party appeal. This wasactually done. What the Board suggested was entirely reasonable whether done inexercise of a statutory power or not. However, that appeal was subsequentlywithdrawn, and with such withdrawal, the applicants” objections were placed atnaught.Here there is no absence of certainty. No ‘prejudice ‘is identified as to a detrimentto or diminution of third party rights save as to the existence of a valid appeal. No‘prejudice’ has occurred to the procedures of the Board save in the most technicaland, perhaps trivial way. The objection raised by the Board was essentially itself‘technical’. Does the deviation from the mandatory requirement come within thedescription of being ‘trivial’, ‘technical’ or ‘peripheral’ identified by Henchy J. in[Monaghan UDC v. Alf-a-Bet Promotions [1986] ILRM 64 at p. 69]? If notcomplete, the compliance here was substantial.The facts of this case are distinguishable from those identified by Lavan J. inMcCann v. An Bord Pleanála … and Feeney J. in Rowan v. An Bord Pleanála …,where failure of compliance with a mandatory time requirement arose. In bothjudgments such absence of compliance necessarily entailed a substantive orfundamental non-fulfilment of a statutory procedural requirement, more analogousto a failure to issue a summons within a statutory limitation period.Here no such considerations arise. There was in fact substantive compliance withstatutory (and mandatory) time requisites. Should the enclosing of this incorrectletter, with objection, in circumstances earlier outlined, render this appeal invalid? Iam not persuaded that it should. The situation is one where the de minimis ruleshould apply.”39. The applicant places significant reliance on this judgment and suggests that, in thepresent case, a similar approach should be taken. In my view, however, the decision ofMcMenamin J. in Murphy is a decision on very particular facts. It is clear that the court inthat case was concerned that the correspondence from the Council was very confusingand in fact described it as a trap for the unwary. More importantly, it is clear from thejudgment of McMenamin J. that he concluded that there was substantial compliance withthe statutory requirement. He expressly finds in his judgment that the informationcontained in the letter that was included in the appeal included the relevant informationnecessary for the respondent to proceed. Moreover, the document that was included(notification of the decision to grant permission) necessarily demonstrated that at somePage 17 ⇓earlier stage the action group must have lodged a submission or objection to the planningpermission. Otherwise, the notification would never have issued to them.40. In contrast, in the present case, there is, as counsel for the respondent has observed, nodocument in existence which identifies the names and addresses of the owners orresidents for whom the applicant acts. The submission to the Council does not do so.Nor does the appeal document. Nor do the terms of engagement exhibited by theapplicant. Thus, even if the de minimis principle is available in respect of the s. 127 (1)requirements, I cannot identify any factual basis in the present case on which theprinciple could be applied. In order for the de minimis principle to be applied, it must beclear that the failure to comply with the relevant statutory obligation is of a trivial orinsubstantial nature. If, however, there has been a complete failure to comply, I cannotsee how there is any scope for the application of the de minimis principle. The relevantprinciple was explained as follows by Henchy J. in Monaghan UDC v. Alf-a-Bet PromotionsLtd [1980] ILRM 64 at p. 69 as follows:-“I …feel it pertinent to express the opinion that when the 1963 Act prescribedcertain procedures as necessary to be observed for the purpose of getting adevelopment permission, which may affect radically the rights or amenities ofothers and may substantially benefit or enrich the grantee of the permission,compliance with the prescribed procedures should be treated as a conditionprecedent to the issue of the permission. In such circumstances, what thelegislature has, either immediately in the Act or mediately in the Regulations,nominated as being obligatory may not be depreciated to the level of a meredirection except on the application of the de minimis rule. In other words, what thelegislature has prescribed, or allowed to be prescribed, in such circumstances asnecessary should be treated by the courts as nothing short of necessary, and anydeviation from the requirements must, before it can be overlooked, be shown, bythe person seeking to have it excused, to be so trivial, or so technical, or soperipheral, or otherwise so insubstantial that, on the principle that it is the spiritrather than the letter of the law that matters, the prescribed obligation has beensubstantially and therefore adequately, complied with.” (Emphasis added).41. Accordingly, having regard to the approach taken by the Supreme Court in the MonaghanUDC case, if the de minimis principle is to be capable of application in the present case, itmust be shown that the appeal made by the applicants to the respondent substantiallycomplied with the obligation contained in s. 127 (1) (b). The observations of Henchy J. inthe opening sentences of the passage quoted in para. 39 above closely chime with theobservations of Finlay Geoghegan J. in O’Connor and with the observations of Kelly J. inGraves and McAneneley. Applying those observations to the provisions of s. 127 (1) (b) ofthe 2000 Act, It will be seen that the Oireachtas, in enacting the provisions of s. 127, haslaid down specific requirements that must be followed in order to submit a valid appeal tothe respondent. There is nothing in the language of s. 127 (1) to suggest that theOireachtas intended that these requirements should be directory only. On the contrary,the fact that these requirements are laid down in the context of an appeal for which therePage 18 ⇓is a statutory time limit reinforces the conclusion that the requirements were intended tobe mandatory rather than directory. This conclusion is also supported by the provisionsof s. 127 (3) (quoted in para. 3 above) which prescribes that the appeal documentscannot be supplemented or expanded upon at a later stage.42. In the specific context of s. 127 (1) (b), it is also noteworthy that the Oireachtas decided,when enacting the 2000 Act, to impose more extensive obligations than had previouslybeen imposed by s. 4 (1) (b) of the 1992 Act. As outlined in para. 4 above, all that wasrequired under s. 4 (1) (b) of the 1992 Act was that both the name and address of theappellant be given. In contrast, under s. 127 (1) (b), the name and address of theappellant must be given in addition to the name of any person (who might be acting onbehalf of an appellant. This strongly suggests that the Oireachtas was concerned toensure that all appropriate details would be included in the appeal so that those partiesaffected by the outcome of the appeal would be able to identify precisely the relevantpersons involved in the appeal. The intention of the Oireachtas appears to have been toachieve a greater level of certainty and precision than had previously existed under the1992 Act.43. The importance of complying with the obligations imposed by s. 127 (1) is stronglyreinforced by the provisions of s. 127 (2) (a) which provide in simple and straightforwardterms that an appeal which does not comply with the requirements of s. 127 (1) shall beinvalid. In my view, it is impossible, in those circumstances to construe s. 127 asanything other than obligatory. It must follow that any failure to comply to the letter withthe requirements of s. 127 (1) can only be excused where the non-compliance is plainlyinsubstantial.44. In circumstances where, in the present case, the obligation to state the names andaddresses of the owners and residents of St. Michael’s Cottages for whom the applicantacts have not been stated anywhere in the appeal or in the documents attached to theappeal I can see no basis on which one could take the view that the obligation has beensubstantially complied with. In light of the approach taken by the Supreme Court in theMonaghan UDC case, it is clear that, absent substantial compliance, the de minimisprinciple is not capable of application.45. In the circumstances, subject to consideration of the remaining issues argued in the case,it seems to me to follow that, in accordance with s. 127 (2) (a), the appeal brought bythe applicant in this case must be treated as invalid.Fair procedures46. As noted above, the applicant argues that he should have been given an opportunity tomake submissions to the respondent before the decision to reject the appeal was made.Obviously, in many cases, a public body in the position of the respondent is not entitled totake a decision adverse to an interested party without first giving that party anopportunity to be heard before a final decision is made. However, I do not see any scopefor the application of that basic principle in this case. Section 127 of the 2000 Act doesnot allow any discretion to the respondent, the exercise of which might be swayed byPage 19 ⇓submissions made to it. The section is a straightforward provision which sets out therequirements for a valid appeal. Either an appeal complies with those requirements or itdoes not. By its terms, s. 127, does not envisage any form of hearing or opportunity tomake submissions before a determination is reached by the respondent as to whether anappeal does or does not comply with requirements laid down in s. 127 (1). Of course, inaccordance with East Donegal principles, s. 127, like any other statutory provision, mustbe read, to the extent possible, in accordance with the Constitution. This requires thatany procedures or adjudications which are permitted, provided for, or prescribed by anAct of the Oireachtas are to be conducted in accordance with the principles ofconstitutional justice. This follows from what was said by Walsh J. in the Supreme Courtin East Donegal Co. v. Operative v. Attorney General [1970] I.R. 317 at p. 341. Thus, thefact that s. 127 does not expressly provide for notice to be given to an appellant prior toan adverse decision in relation to the validity of an appeal, does not exclude thepossibility that, in a particular case, such notice might be required. For example, it ispossible to envisage circumstances where there could well be a nuanced factual issuerelevant to the fulfilment of one or more of the requirements of s. 127 (1) which wouldrequire, as a matter of basic constitutional fairness of procedures, that advance notice begiven and an opportunity afforded to make submissions. That said, I cannot see anybasis for the giving of advance notice in the present case. In my view, the appeal in thiscase plainly did not comply with the requirements of s. 127 (1) (b). In thosecircumstances, by virtue of s. 127 (2) (a), the appeal was invalid and there was nothingthe applicant could have said or which the respondent could have done to alter thatconclusion.47. In support of his submissions in relation to this aspect of the applicant’s case, counsel forthe applicant sought to place reliance on the decision of Barron J. in McGoldrick v. AnBord Pleanála [1997] 1 I.R. 497. However, that case was concerned with an entirelydifferent situation. In that case, an issue arose as to whether certain refurbishmentworks constituted development. The matter was the subject of a reference under s. 5 ofthe 1963 Act. The issue turned on whether an annexe to the property had beenconstructed many years previously. The respondent determined that the annexe was notonly of recent construction but that it had been erected by the applicant himself. Theissue was decided against the applicant on that basis. However, the applicant had madethe case that the annexe was an historic construction and it was never suggested to himin advance of the decision by the respondent that his case to that effect was to berejected notwithstanding that he had indicated that he was willing to provide any furtherinformation or evidence that the respondent might require. Furthermore, it was not madeclear to the applicant that the principal basis of opposition by a local residents’ associationto his application was that he had himself constructed the annexe. It is obvious why, inthose particular circumstances, it was essential, as a matter of basic fairness ofprocedures, that the applicant should have been put on notice of the respondent’sintention to reach an adverse decision based on an issue of fact of that kind. Theapplicant may well have been in a position to place additional evidence before therespondent which could have altered the ultimate determination reached by it. That is anPage 20 ⇓entirely different situation from the present case. I therefore do not believe that thedecision in Armstrong provides any support for the case made by the applicant here.48. I have also considered whether the recent decision of the Supreme Court in Balz v. AnBord Pleanála [2019] IESC 90 (decided after the hearing of these proceedings) has anyimpact. I have come to the conclusion that it does not. Although the Supreme Court inthat case emphasised the importance that the respondent should address anysubmissions made to it by an interested party, I do not see anything in the judgmentwhich would affect my conclusion that, in the particular circumstances of this case, therewas no breach of fair procedures by the respondent.49. Moreover, in this case, subsequent to the respondent’s letter of 14th March, 2019, it isclear that the applicant had an opportunity to make submissions. He did so in his emailof 20th March, 2019 (described above). Following that submission, it is clear from therespondent’s email of 11th April, 2019, that the respondent re-examined the appealdocumentation and nonetheless came to the conclusion that the appeal must be deemedinvalid in circumstances where the requirements of s. 127 had not been complied with.Thus, even if there was a right to make submissions by the applicant in relation to theissue of compliance with s. 127 (and I do not accept that such a right arose here) theapplicant had an opportunity to exercise that right and a re-examination of thecircumstances took place thereafter by the respondent. This seems to me to be a furtherbasis on which to conclude that there was no breach by the respondent of any obligationof fairness.Estoppel50. I do not believe that this element of the case made at the hearing has in fact beenpleaded in the statement of grounds. In those circumstances, this is not an issue whichfalls for determination. Nonetheless, since there was some argument on the issue at thehearing, I will set out my views in relation to it purely for completeness.51. In circumstances where the appeal was invalid, I cannot see how any estoppel can ariseas against the respondent which would require it, notwithstanding the invalidity of theappeal, to hear and determine the appeal. In this context, counsel for the respondentreferred to the observations of Hogan & Morgan “Administrative Law” (4th ed.) 2010 atpara. 19.06 to the following effect:-“[A] Public Authority cannot give itself a jurisdiction it does not possess. It cannot dothis by a mistaken conclusion as to the extent of its own powers and neither can itdo so by creating an estoppel or a legitimate expectation. There can thus be nolegitimate expectation which is contrary to law”.52. Counsel for the respondent also referred, in this context, to the decision of the SupremeCourt in Re Green Dale Building Company Ltd [1977] I.R. 256. In that case, a housingauthority made a compulsory purchase order under the Housing Act, 1966 (“the 1966Act”) affecting the lands of the claimant company. It served a notice to treat prior to thecompulsory purchase order (“CPO”) becoming operative. The notice was served in 1972.Page 21 ⇓However, the notice did not become operative at that time because a third party had, inthe meantime, applied to the court for a declaration that the CPO was invalid. Thatapplication was ultimately dismissed on 7th April, 1975. The CPO only became operativeat that point. Thereafter on 14th April, 1975, the housing authority served on theclaimant a second notice to treat. However, by that time, the value of the claimant’slands had fallen from their value as of 1972 when the first notice was served. Theclaimant sought to rely upon the validity of the first notice and, in particular, argued thatthe housing authority was estopped from claiming otherwise. In seeking to make thatcase, the claimant relied upon the fact that, subsequent to the service of the notice totreat in 1972, a property arbitrator had been appointed to assess the compensationpayable to the claimant. In those circumstances the claimant contended that by waiveror estoppel, the housing authority had lost the right to rely on the invalidity of the firstnotice to treat. This case was rejected by Henchy J. in the Supreme Court in the followingterms (at p. 266):-“We are not concerned …with whether a validly-served notice to treat constitutesthe exercise of a power of compulsory acquisition for the purpose of a particularstatutory provision, which is the issue which arose in the cases on which reliancewas placed. That point cannot arise, because the first notice to treat was notvalidly served, so that service was nugatory for every statutory purpose. However,it was a purported exercise of a statutory power, to wit, the power to serve a noticeto treat and thereby to put in train the statutory consequences of a valid notice totreat. It is true that the acquiring authority did set up the invalid notice to treatand did lead the claimants to join with them in arbitration proceedings as if thenotice had been validly served but, as the decided cases make clear, parties whoare to be affected by the exercise of a statutory power cannot compel the donee ofthe power to convert, into a valid exercise of the power, conduct which the statuteexpressly or by implication says cannot be an exercise of the power. That is theposition here.Compulsory acquisition under the Act of 1966 requires the acquiring authority toserve a notice to treat. They may do so only if they comply with the provisions ofs. 79, sub-s. 1, of the Act. The acquiring authority here failed to comply with thatsub-section in regard to the first notice to treat which, in breach of s. 79, sub-s. 1,was served before the compulsory purchase order had become operative.Therefore, that service was bad; and no subsequent conduct on the part of theacquiring authority could make it good for the statutory prerequisites for theexercise of the power to serve such a notice were not observed. If the courts wereto allow subsequent conduct to outweigh the requirements of the sub-section, theywould (in effect) be amending the sub-section, which is something beyond theconstitutional competence of the Courts”. (Emphasis added).53. It seems to me that this principle is equally applicable here. The respondent is astatutory body. Its powers and jurisdiction are derived solely from statute. It cannot actin a manner not authorised expressly or impliedly by statute. It cannot thereforePage 22 ⇓overlook or forgive a failure to comply with a statutory provision unless the statute inquestion permits it to do so. In this case, the provisions of s. 127 are very clear. Section127 (1) sets out the requirements which must be complied with if a valid appeal is to bemade to the respondent. Moreover, s. 127 (2) (a) expressly declares any non-compliantappeal to be invalid. Against that backdrop, I can see no basis on which the doctrine ofestoppel could confer a jurisdiction upon the respondent which it does not have bystatute. Thus, even if the statement of grounds had included a claim based on estoppelor legitimate expectation, I would have been required to reject it.Conclusion54. In light of the views which I have set out above, I must conclude that the applicant hasfailed to establish any valid ground to challenge the decision of the respondent to rejecthis appeal. In those circumstances, the only order which I can make in these proceedingsis to dismiss the proceedings.
Result: The applicant was found to have failed to establish any valid ground to challenge the decision of the respondent to reject his appeal. The Court accordingly dismissed the proceedings