Planning Appeals
Planning and Development Act
Appeal to Board.
37.—(1) (a) An applicant for permission and any person who made submissions or observations in writing in relation to the planning application to the planning authority in accordance with the permission regulations and on payment of the appropriate fee, may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.
(b) Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority.
(c) Paragraph (b) shall be construed and have effect subject to sections 133, 138 and 139.
(d) In paragraph (a) and subsection (6), “the appropriate period” means the period of four weeks beginning on the day of the decision of the planning authority.
(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates.
(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—
(i) the proposed development is of strategic or national importance,
(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(iii) permission for the proposed development should be granted having regard to F362[regional spatial and economic strategy] for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.
(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the requirements of section 34(10), indicate in its decision the main reasons and considerations for contravening materially the development plan.
(3) Subject to section 141(2), the provisions of subsection (1) authorising appeals to be made before the expiration of the appropriate period within the meaning of that subsection shall be construed as including a provision that an appeal received by the Board after the expiration of the appropriate period shall be invalid as not having been made in time.
(4) (a) Notwithstanding subsection (1), where in accordance with the permission regulations any prescribed body is entitled to be given notice of any planning application, that body shall be entitled to appeal to the Board before the expiration of the appropriate period within the meaning of that subsection where the body had not been sent notice in accordance with the regulations.
(b) The Board may dismiss any appeal made under paragraph (a) where it considers the body concerned was not entitled to be sent notice of the planning application in accordance with the permission regulations.
F363[(c) Notwithstanding subsection (1), a body or organisation referred to in paragraph (d) shall be entitled to appeal to the Board against a decision by a planning authority on an application for development (being development in respect of which an F364[environmental impact assessment report] was required to be submitted to the planning authority in accordance with section 172) before the expiration of the appropriate period within the meaning of that subsection.
(d) The body or organisation mentioned in paragraph (c) is a body or organisation (not being a State authority, a public authority or a governmental body or agency)—
(i) the aims or objectives of which relate to the promotion of environmental protection,
(ii) which has, during the period of 12 months preceding the making of the appeal, pursued those aims or objectives, and
(iii) which satisfies such additional requirements (if any) as are prescribed under paragraph (e).
(e) The Minister may prescribe additional requirements which a body or organisation of the foregoing kind must satisfy in order to make an appeal under paragraph (c), being requirements of a general nature and for the purposes of promoting transparency and accountability in the operation of such organisations, including requirements—
(i) in relation to its membership,
(ii) that the pursuit of its aims or objectives be otherwise than for profit,
(iii) in relation to the possession of a specified legal personality and the possession of a constitution or rules,
(iv) that the area of environmental protection to which its aims or objectives relate is relevant to the class of matter into which the decision, the subject of the appeal, falls.
(f) The Board may dismiss any appeal made under paragraph (c) where it considers that the body or organisation concerned does not satisfy the requirements of paragraph (d)(i), (ii) or (iii).]
(5) (a) No application for permission for the same development or for development of the same description as an application for permission for development which is the subject of an appeal to the Board under this section shall be made before—
(i) the Board has made its decision on the appeal,
(ii) the appeal is withdrawn, or
(iii) the appeal is dismissed by the Board pursuant to section 133 or 138.
(b) Where an application for permission referred to in paragraph (a) is made to a planning authority, the planning authority shall notify the applicant that the application cannot be considered by the planning authority and return the application and any other information submitted with the application in accordance with the permission regulations, and any fee paid.
(c) A dispute as to whether an application for permission is for the same development or is for development of the same description as an application for permission which is the subject of an appeal to the Board may be referred to the Board for determination.
(6) (a) Notwithstanding subsection (1)(a), a person who has an interest in land adjoining land F365[in respect of which a decision to grant permission has been made] may, within the appropriate period and on payment of the appropriate fee, apply to the Board for leave to appeal against a decision of the planning authority under section 34.
(b) An application under paragraph (a) shall state the name and address of the person making the application, the grounds upon which the application is made, and a description of the person’s interest in the land.
(c) The Board shall, within one week from the receipt of an application under paragraph (a), require, by notice in writing, the planning authority concerned to submit to the Board copies of the materials referred to in subparagraph (i) of section 128(a), the report referred to in subparagraph (ii) of that section, and the decision and notification referred to in subparagraph (iii) of that section and the planning authority shall comply with such requirement within one week from the date of receiving the notice.
(d) The Board, or any member or employee of the Board duly authorised by the Board in that behalf, shall, where an applicant under this subsection shows that—
(i) the development F365[in respect of which a decision to grant permission has been made] will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject, and
(ii) that the imposition of such conditions will materially affect the applicant’s enjoyment of the land or reduce the value of the land,
within 4 weeks from the receipt of the application grant the applicant leave to appeal against the decision of the planning authority under subsection (1).
(e) The Board shall notify in writing the applicant and the planning authority of a decision to grant or refuse an application under this subsection within 3 days from its making.
(f) A person to whom leave to appeal has been granted under this subsection shall bring the appeal within 2 weeks from the receipt of the notification under paragraph (e).
(g) Notwithstanding section 34(11)(a)(i), where an application is made under this subsection a planning authority shall not make a grant of permission unless the application is refused.
(h) Where leave to appeal is granted under this subsection, subsection (2) of section 126 shall apply subject to the modification that the reference therein to 18 weeks shall be construed as a reference to 14 weeks.
(i) Where leave to appeal is granted under this section, a planning authority that has complied with paragraph (c) shall, in respect of the appeal, be deemed to have complied with the requirements of section 128.
Annotations
Amendments:
F362
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 75, S.I. No. 214 of 2014.
F363
Inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 10, S.I. No. 525 of 2006.
F364
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 8, in effect as per reg. 2(1).
F365
Substituted (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 10, commenced on enactment.
F366
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 13(a), not commenced as of date of revision.
F367
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 13(b), not commenced as of date of revision.
Modifications (not altering text):
C63
Prospective affecting provision: subs. (1)(b) amended and subss. (7)-(9) inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 13(a), (b), not commenced as of date of revision.
(b) Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), F366[(3), (4), and (4A)] of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority.
…
F367[(7) Subject to the modification referred to in subsection (8), and any other necessary modifications, subsections (12) and (12A) of section 34 apply to the consideration by the Board of an application on appeal under subsection (1) against a decision of the planning authority.
(8) The modification is that the reference in section 34(12) to the planning authority shall be construed as a reference to the Board.
(9) Where the Board refuses under section 34(12), as applied by subsection (7), to consider an application on appeal—
(a) it shall give the reasons for the refusal to the person who made the appeal,
(b) the application on appeal shall be deemed to have been withdrawn by the applicant for permission, and
(c) the refusal shall operate to annul the decision of the planning authority as from the time when that decision was given.]
C64
Certain functions transferred to Cork City Council as a result of the Cork City and Council areas boundary alteration (31.01.2019) by Local Government Act 2019 (1/2019), s. 31, S.I. No. 20 of 2019.
Planning applications and development contribution schemes
31. (1) For the purposes of the Act of 2000 or any instrument under that Act and subject to subsection (2), the county council shall, after the transfer day, be the planning authority in relation to any planning application made before the transfer day in respect of development or proposed development in the relevant area.
(2) (a) Subject to paragraph (b), the functions of a planning authority under the Act of 2000 shall, as respects—
(i) a decision under section 34 of that Act, or
(ii) a determination under section 37 of that Act,
made before the transfer day in relation to development or proposed development in the relevant area, be performable from that day by the city council.
(3) Any contribution—
(a) paid before the transfer day in accordance with section 49 of the Act of 2000 for the purpose of any public infrastructure service or project in the relevant area, and
(b) vested in the city council under Part 2,
shall be expended by the city council for that purpose.
(4) Any development contribution scheme under section 48 of the Act of 2000 or supplementary development contribution scheme under section 49 of that Act made by the city council shall, from the transfer day, apply to the relevant area as it applies to the rest of the functional area of the city council.
…
C65
Application of section restricted and matters to be considered provided (27.09.2007) by Waste Water Discharge (Authorisation) Regulations 2007 (S.I. No. 684 of 2007), regs. 41(1) and 43(1).
Limitation of Act of 2000
41. (1) Subject to Regulation 42(2), and notwithstanding sections 34, 37, 37E, 175 and 226 of the Act of 2000, or any other provision of that Act, where, under these Regulations, an authorisation has been granted in respect of a waste water discharge from a waste water works—
(a) a planning authority, or An Bord Pleanála, where it decides to grant a permission under section 34, 37 or 37E on appeal or otherwise, as the case may be, of the said Act, or
(b) An Bord Pleanála, where it decides to grant an approval under section 175 or 226 of the said Act,
in respect of a proposed development that involves a waste water discharge from a waste water works, shall not subject the permission or approval, as the case may be, to conditions which are for the purposes of controlling the waste water discharge.
(2) Where a permission or approval under the Act of 2000 has been subjected to conditions, other than conditions as referred to in paragraph (3)(b), that are for the purposes of controlling discharges from a development as described in paragraph (1), those conditions shall cease to have effect upon the granting of an authorisation under these Regulations in respect of the waste water discharges concerned.
…
Consideration of proposals by planning authorities and An Bord Pleanála
43. (1) Where a planning authority or An Bord Pleanála is considering an application for permission, an appeal or an application for approval under section 34, 37, 37E, 175 or 226 of the Act of 2000 for development being development which involves the disposal of waste water to a waste water works, or is considering such a development under section 179 of the Act of 2000, the planning authority or the Board, as the case may be, shall consider whether the discharge of waste water from the proposed development, in conjunction with existing discharges to the receiving waters, would cause non-compliance with the combined approach or, in situations where there is existing non-compliance, would result in a significant breach of the combined approach.
…
F368[
Board’s jurisdiction in relation to certain planning applications.
37A.— (1) F369[Subject to Part XXI, an application for permission] for any development specified in the Seventh Schedule (inserted by the Planning and Development (Strategic Infrastructure) Act 2006) shall, if the following condition is satisfied, be made to the Board under section 37E and not to a planning authority.
(2) That condition is that, following consultations under section 37B, the Board serves on the prospective applicant a notice in writing under that section stating that, in the opinion of the Board, the proposed development would, if carried out, fall within one or more of the following paragraphs, namely—
(a) the development would be of strategic economic or social importance to the State or the region in which it would be situate,
(b) the development would contribute substantially to the fulfilment of any of the objectives in the F370[National Planning Framework] or in any F371[regional spatial and economic strategy] in force in respect of the area or areas in which it would be situate,
(c) the development would have a significant effect on the area of more than one planning authority.
(3) In subsection (2) “prospective applicant” means the person referred to in section 37B(1).]
F372[(4) (a) Notwithstanding subsection (1), where an application for permission is being made in relation to a development specified in the Seventh Schedule that is located in a strategic development zone, the applicant may elect to make the application to the planning authority under section 34 and regulations made thereunder.
(b) Section 170 shall apply to an application made under paragraph (a).
(c) Section 37B shall not apply to an application made under paragraph (a).]
Annotations
Amendments:
F368
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F369
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 13, S.I. No. 488 of 2022.
F370
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 18(2) and sch. 3 ref. no. 9, S.I. No. 436 of 2018.
F371
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 76, S.I. No. 214 of 2014.
F372
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 25, S.I. No. 477 of 2010.
F373[
Discussions with Board before making of application.
37B.— (1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before making the application, enter into consultations with the Board in relation to the proposed development.
(2) Such a person is referred to subsequently in this section and in sections 37C and 37D as a “prospective applicant”.
(3) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—
(a) whether the proposed development would, if carried out, fall within one or more of paragraphs (a) to (c) of section 37A(2),
(b) the procedures involved in making a planning application and in considering such an application, and
(c) what considerations, related to proper planning and sustainable development or the environment, may, in the opinion of the Board, have a bearing on its decision in relation to the application.
(4) Where, following consultations under this section, the Board is of the opinion that the proposed development would, if carried out—
(a) fall within one or more of paragraphs (a) to (c) of section 37A(2), it shall serve a notice in writing on the prospective applicant stating that it is of that opinion, or
(b) not fall within any of those paragraphs, it shall serve a notice in writing on the prospective applicant stating that it is of that opinion.
(5) A notice under subsection (4)(b) shall include a statement that the prospective applicant’s application for permission, if it is proceeded with, must be made to the appropriate planning authority (and such an application, if it is proceeded with, shall be made to that planning authority accordingly).
(6) The Board shall serve a copy of a notice under subsection (4)(a) or (b), as the case may be, on the appropriate planning authority.
(7) No application for permission in respect of a development referred to in subsection (1) shall be made to a planning authority unless or until a notice is served under subsection (4)(b) in relation to the development.
(8) In this section “appropriate planning authority” means whichever planning authority would, but for the enactment of section 3 of the Planning and Development (Strategic Infrastructure) Act 2006, be the appropriate planning authority to deal with the application referred to in subsection (1).]
Annotations
Amendments:
F373
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
Modifications (not altering text):
C66
Application of section restricted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 18(2)-(4), S.I. No. 403 of 2019.
Amendment of Seventh Schedule to Act of 2000 and related transitional provisions
18. …
(2) Where, before the relevant day, a person has entered into consultations with the Board under section 37B of the Act of 2000 in relation to a relevant development but no notice under subsection (4)(a) of that section has been served on such person following such consultations, such consultations shall, on and after the relevant day and by virtue of this subsection, cease and, on an after the relevant day, no such notice shall be served on such person.
(3) (a) Paragraphs (b) and (c) apply where, before the relevant day, a notice has been served on a person under section 37B(4)(a) of the Act of 2000 in relation to a relevant development on a person but no related application has been made under section 37E of that Act.
(b) On and after the relevant day, the notice that has been served under section 37B(4)(a) of the Act of 2000 shall, by virtue of this subsection, be deemed to be withdrawn by the Board and—
(i) accordingly, the related application may not be made under section 37E of that Act or, if made, the Board shall refuse to deal with it, and
(ii) the Board shall, as soon as is practicable on or after the relevant day, give notice in writing to the person on whom such notice was served that he or she may not make the related application under section 37E of that Act and the reasons for that.
(c) This subsection shall not be construed as preventing the related application from being proceeded with by way of being made to the appropriate planning authority.
(4) (a) Paragraphs (b) and (c) apply where, before the relevant day, an application has been made under section 37E of the Act of 2000 in relation to a relevant development, but has not yet been determined by, the Board.
(b) On and after the relevant day, the notice that has been served under section 37B(4)(a) of the Act of 2000 that gave rise to the application shall, by virtue of this subsection, be deemed to be withdrawn by the Board and—
(i) accordingly, the Board shall refuse to further deal with the application,
(ii) the Board shall return the application to the person who made it together with any fee that accompanied the application, and
(iii) the Board shall, as soon as is practicable on or after the relevant day, give notice in writing to the person who made the application, and any other person who has made submissions or observations on the application, that the Board will no longer deal with the application and the reasons for that.
(c) This subsection shall not be construed as preventing the application from being proceeded with by way of being made to the appropriate planning authority.
(5) Sections 146B and 146C of the Act of 2000 shall, on and after the relevant day, cease to apply to a decision of the Board to grant permission under section 37G of that Act to a relevant development.
(6) In this section—
“planning authority” means a local authority within the meaning of section 2 of the Act of 2001;
“relevant day” means the day on which subsection (1) comes into operation;
“relevant development” means the development deleted, by subsection (1), from paragraph 2 of the Seventh Schedule to the Act of 2000.
F374[Section 37B: supplemental provisions.
37C.— (1) A prospective applicant shall, for the purposes of consultations under section 37B, supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.
(2) The holding of consultations under section 37B shall not prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.
(3) The Board shall keep a record in writing of any consultations under section 37B in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any planning application in respect of the proposed development relates.
(4) The Board may consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under section 37B in relation to a proposed development.]
Annotations
Amendments:
F374
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F375[Application for opinion under section 37CD
37CC. …]
Annotations:
Amendments:
F375
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
Modifications (not altering text):
C67
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
F375[37CC. (1) A person who proposes to apply for permission for any development specified in the Seventh Schedule (referred to in this section and section 37CD as a “prospective applicant”) may request a meeting with the Board for the purposes of section 37CD as part of consultations referred to in section 37B(1).
(2) A request under subsection (1) shall be in writing, be accompanied by the appropriate fee and include—
(a) the name and address of the prospective applicant,
(b) a site location map sufficient to identify the land on which the proposed development would be situated,
(c) a brief description of the nature and purpose of the proposed development and of its possible effects on the environment,
(d) a draft layout plan of the proposed development,
(e) a description of—
(i) the details, or groups of details, of the proposed development that, owing to the circumstances set out in subparagraph (ii), are unlikely to be confirmed at the time of the proposed application, and
(ii) the circumstances relating to the proposed development, including such circumstances as the Minister may prescribe in relation to any class or description of development for the purposes of this subparagraph, that indicate that it is appropriate that the proposed application be made and decided, before the prospective applicant has confirmed the details referred to in subparagraph (i) including, in particular, whether the prospective applicant may be able to avail of technology available after making the proposed application that is more effective or more efficient than that available at the time of the application,
(f) an undertaking to provide with the proposed application, either—
(i) two or more options, in respect of each detail or group of details referred to in paragraph (e)(i), containing information on the basis of which the proposed application may be made and decided,
(ii) parameters within which each detail referred to in paragraph (e)(i) will fall and on the basis of which the proposed application may be made and decided, or
(iii) a combination of subparagraphs (i) and (ii),
(g) such other information, drawings or representations as the prospective applicant may wish to provide or make available, and
(h) such other information as may be prescribed.
(3) Where a prospective applicant submits a request in accordance with subsection (1) the Board shall convene a meeting for the purposes of section 37CD.
(4) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient for the purposes of holding a meeting convened under subsection (3), including—
(a) matters that are required to be considered at the meeting,
(b) matters that may be considered at the meeting, and
(c) the manner in which the meeting is to be conducted.]
F376[Opinion as to flexibility with regard to certain applications
37CD. …]
Annotations:
Amendments:
F376
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
Modifications (not altering text):
C68
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
F376[37CD. (1) The Board shall, as soon as practicable after a meeting convened under section 37CC(3) takes place, consider—
(a) the information included in the request for the meeting under section 37CC, and
(b) any other relevant information that is made available at the meeting,
and determine if it is satisfied that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed certain details of the application.
(2) Where the Board serves a notice under section 37B(4)(a) it shall, where it determines that it is satisfied in accordance with subsection (1), serve an opinion to that effect with such notice.
(3) Where the Board serves a notice under section 37B(4)(a) it shall, where it determines that it is not satisfied in accordance with subsection (1), notify the prospective applicant to that effect.
(4) An opinion under subsection (2) shall specify—
(a) the details, or groups of details, of the proposed development that may be confirmed after the proposed application has been made and decided,
(b) the circumstances relating to the proposed development that indicate that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed the details referred to in paragraph (a), and
(c) that, in respect of each detail, or group of details, referred to in paragraph (a), the proposed application shall, in addition to any other requirement imposed by or under this Act, be accompanied by the information referred to in section 37CC(2)(f).
(5) A meeting held, and any opinion issued, for the purposes of this section shall be part of consultations held under section 37B.
(6) An opinion issued by the Board under subsection (2) shall only be made public when a planning application in respect of the proposed development is made in accordance with section 37E.
(7) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient for the purposes of the Board providing an opinion under subsection (2), including the form of the opinion.]
F377[Offence of taking payment, etc. in connection with section 37CD procedure
37CE. …]
Annotations:
Amendments:
F377
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
Modifications (not altering text):
C69
Prospective affecting provision: section inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 14, not commenced as of date of revision.
F377[37CE. A member or official of the Board who takes or seeks any favour, benefit or payment, direct or indirect (on his or her own behalf or on behalf of any other person or body), in connection with the provision of an opinion or notification under section 37CD commits an offence.]
F378[Opinion by Board on information to be contained in environmental impact statement.
37D.— (1) Where a notice has been served under section 37B(4)(a) in relation to proposed development, a prospective applicant may request the Board to give to him or her an opinion in writing prepared by the Board on F379[the scope and level of detail of the information to be included] in an F380[environmental impact assessment report] in relation to the development.
(2) On receipt of such a request the Board shall—
(a) consult with the requester and such bodies as may be specified by the Minister for the purpose, and
(b) F381[after taking into account the information provided by the prospective applicant, in particular on the specific characteristics of the proposed development, including its location and technical capacity, and its likely impact on the environment,] comply with the request as soon as is practicable.
(3) A prospective applicant shall, for the purposes of the Board’s complying with a request under this section, supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.
F382[(3A) Where an opinion referred to in subsection (2) has been provided, the environmental impact assessment report shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects on the environment of the proposed development, taking into account current knowledge and methods of assessment.]
(4) The provision of an opinion under this section shall not prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.]
Annotations
Amendments:
F378
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F379
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 9(a), in effect as per reg. 2(1).
F380
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 9, in effect as per reg. 2(1).
F381
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 9(b), in effect as per reg. 2(1).
F382
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 9(c), in effect as per reg. 2(1).
Modifications (not altering text):
C70
Transitional arrangements provided (21.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 3(1)(b)(i), in effect as per reg. 2(1).
Transitional arrangements
3. (1) Subject to paragraph (3), the Act of 2000 and the Regulations of 2001, as in force immediately before 1 September 2018, shall continue to apply to development or proposed development, as the case may be, in the following cases: …
(b) a request has been made, before 16 May 2017—
(i) under section 37D (1), 173(2)(a) or (3)(a), 181C(3)(b) or 182E(3) of the Act of 2000, as so in force, for an opinion to be given or provided by the planning authority or the Board, as the case may be, on the information required to be contained in an environmental impact statement relating to such development, or
…
(2) Section 2 of the Act of 2000, as in force immediately before 1 September 2018, shall apply to the interpretation of this Regulation as that section applies to the interpretation of that Act.
(3) The Act of 2000 and the Regulations of 2001, as in force on or after 1 September 2018, shall not apply to a case referred to in paragraph (1) unless otherwise specified in a provision of that Act or those Regulations, as the case may be.
(4) In this Regulation—
“Act of 2000” means the Planning and Development Act 2000 (No. 30 of 2000);
“Regulations of 2001” means the Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Editorial Notes:
E175
Power pursuant to section exercised (3.06.2011) by Planning and Development (Amendment) Regulations 2011 (S.I. No. 262 of 2011).
E176
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03.2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
F383[
Application to Board.
37E.— (1) An application for permission for development in respect of which a notice has been served under section 37B(4)(a) shall be made to the Board and shall be accompanied by an F384[environmental impact assessment report] in respect of the proposed development.
(2) The Board may refuse to deal with any application made to it under this section where it considers that the application for permission or the F385[environmental impact assessment report] is inadequate or incomplete, having regard in particular to the permission regulations and any regulations made under section 177 or to any consultations held under section 37B.
(3) Before a person applies for permission to the Board under this section, he or she shall—
(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—
(i) stating that—
(I) the person proposes to make an application to the Board for permission for the proposed development,
(II) an F386[environmental impact assessment report] has been prepared in respect of the proposed development, and
(III) where relevant, the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or other party to the Transboundary Convention,
(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the F387[environmental impact assessment report] may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),
(iii) inviting the making, during such period, of submissions and observations to the Board relating to—
(I) the implications of the proposed development for proper planning and sustainable development, and
(II) the likely effects on the environment of the proposed development,
if carried out, and
(iv) specifying the types of decision the Board may make, under section 37G, in relation to the application,
(b) send a prescribed number of copies of the application and the F388[environmental impact assessment report] to the planning authority or authorities in whose area or areas the proposed development would be situated,
(c) send a prescribed number of copies of the application and the F389[environmental impact assessment report] to any prescribed authorities together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—
(i) the implications of the proposed development for proper planning and sustainable development, and
(ii) the likely effects on the environment of the proposed development,
if carried out, and
(d) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the F390[environmental impact assessment report] to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.
(4) The planning authority for the area (or, as the case may be, each planning authority for the areas) in which the proposed development would be situated shall, within 10 weeks from the making of the application to the Board under this section (or such longer period as may be specified by the Board), prepare and submit to the Board a report setting out the views of the authority on the effects of the proposed development on the environment and the proper planning and sustainable development of the area of the authority, having regard in particular to the matters specified in section 34(2).
(5) The F391[chief executive] of a planning authority shall, before submitting any report in relation to a proposed development to the Board under subsection (4), submit the report to the members of the authority and seek the views of the members on the proposed development.
(6) The members of the planning authority may, by resolution, decide to attach recommendations specified in the resolution to the report of the authority; where the members so decide those recommendations (together with the meetings administrator’s record) shall be attached to the report submitted to the Board under subsection (4).
(7) In subsection (6) ‘the meetings adminis trator’s record’ means a record prepared by the meetings administrator (within the meaning of section 46 of the Local Government Act 2001) of the views expressed by the members on the proposed development.
(8) In addition to the report referred to in subsection (4), the Board may, where it considers it necessary to do so, require the planning authority or authorities referred to in that subsection or any planning authority or authorities on whose area or areas it would have a significant effect to furnish to the Board such information in relation to the effects of the proposed development on the proper planning and sustainable development of the area concerned and on the environment as the Board may specify.]
Annotations
Amendments:
F383
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F384
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 10, in effect as per reg. 2(1).
F385
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 11, in effect as per reg. 2(1).
F386
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 12, in effect as per reg. 2(1).
F387
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 13, in effect as per reg. 2(1).
F388
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 14, in effect as per reg. 2(1).
F389
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 15, in effect as per reg. 2(1).
F390
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 16, in effect as per reg. 2(1).
F391
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. no. 51, S.I. No. 436 of 2018.
Modifications (not altering text):
C71
Application of section restricted and matters to be considered provided (27.09.2007) by Waste Water Discharge (Authorisation) Regulations 2007 (S.I. No. 684 of 2007), regs. 41(1) and 43(1).
Limitation of Act of 2000
41. (1) Subject to Regulation 42(2), and notwithstanding sections 34, 37, 37E, 175 and 226 of the Act of 2000, or any other provision of that Act, where, under these Regulations, an authorisation has been granted in respect of a waste water discharge from a waste water works—
(a) a planning authority, or An Bord Pleanála, where it decides to grant a permission under section 34, 37 or 37E on appeal or otherwise, as the case may be, of the said Act, or
(b) An Bord Pleanála, where it decides to grant an approval under section 175 or 226 of the said Act,
in respect of a proposed development that involves a waste water discharge from a waste water works, shall not subject the permission or approval, as the case may be, to conditions which are for the purposes of controlling the waste water discharge.
(2) Where a permission or approval under the Act of 2000 has been subjected to conditions, other than conditions as referred to in paragraph (3)(b), that are for the purposes of controlling discharges from a development as described in paragraph (1), those conditions shall cease to have effect upon the granting of an authorisation under these Regulations in respect of the waste water discharges concerned.
…
Consideration of proposals by planning authorities and An Bord Pleanála
43. (1) Where a planning authority or An Bord Pleanála is considering an application for permission, an appeal or an application for approval under section 34, 37, 37E, 175 or 226 of the Act of 2000 for development being development which involves the disposal of waste water to a waste water works, or is considering such a development under section 179 of the Act of 2000, the planning authority or the Board, as the case may be, shall consider whether the discharge of waste water from the proposed development, in conjunction with existing discharges to the receiving waters, would cause non-compliance with the combined approach or, in situations where there is existing non-compliance, would result in a significant breach of the combined approach.
…
Editorial Notes:
E177
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E178
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03.2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
F392[Section 37E: supplemental provisions.
37F.— (1) Before determining any application for permission under section 37E the Board may, at its absolute discretion and at any time—
(a) require the applicant for permission to submit further information, including a revised F393[environmental impact assessment report],
(b) indicate that it is considering granting permission, subject to the applicant for permission submitting revised particulars, plans or drawings in relation to the development,
(c) request further submissions or observations from the applicant for permission, any person who made submissions or observations, or any other person who may, in the opinion of the Board, have information which is relevant to the determination of the application,
(d) without prejudice to subsections (2) and (3), make any information relating to the application available for inspection, notify any person or the public that the information is so available and, if it considers appropriate, invite further submissions or observations to be made to it within such period as it may specify, or
(e) hold meetings with the applicant for permission or any other person—
(i) where it appears to the Board to be expedient for the purpose of determining the application, or
(ii) where it appears to the Board to be necessary or expedient for the purpose of resolving any issue with the applicant for permission or any disagreement between the applicant and any other party, including resolving any issue or disagreement in advance of an oral hearing.
(2) Where an applicant submits a revised F394[environmental impact assessment report] to the Board in accordance with subsection (1)(a) or otherwise submits further information or revised particulars, plans or drawings in accordance with subsection (1), which, in the opinion of the Board, contain significant additional information on the effect of the proposed development on the environment to that already submitted, the Board shall—
(a) make the information, particulars, plans or drawings, as appropriate, available for inspection,
(b) give notice that the information, particulars, plans or drawings are so available, and
(c) invite further submissions or observations to be made to it within such period as it may specify.
(3) Where the Board holds a meeting in accordance with subsection (1)(e), it shall keep a written record of the meeting and make that record available for inspection.
(4) The Board, or an employee of the Board duly authorised by the Board, may appoint any person to hold a meeting referred to in subsection (1)(e).
(5) Before making a decision under section 37G in respect of proposed development comprising or for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board may request the Environmental Protection Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the Board in relation to the proposed development.
(6) When making its decision under section 37G on the application the Board shall have regard to the observations, if any, received from the Environmental Protection Agency within the period specified under subsection (5).
(7) The Board may, at any time after the expiration of the period specified in a notice under section 37E(3)(a) for making submissions or observations, make its decision under section 37G on the application.
(8) The making of observations by the Environmental Protection Agency under this section shall not prejudice any other function of the Agency.]
Annotations
Amendments:
F392
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F393
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 17, in effect as per reg. 2(1).
F394
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 18, in effect as per reg. 2(1).
F395
Substituted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(d), not commenced as of date of revision.
Modifications (not altering text):
C72
Propsective affecting provision: subs. (5) amended by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(d), not commenced as of date of revision.
(5) Before making a decision under section 37G in respect of proposed development comprising or for the purposes of an activity for which F395[an integrated pollution control licence, an abstraction licence] or a waste licence is required, the Board may request the Environmental Protection Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the Board in relation to the proposed development.
F396[Decision by Board on application under section 37E.
37G.— (1) When making a decision in respect of a proposed development for which an application is made under section 37E, the Board may consider any relevant information before it or any other matter to which, by virtue of this Act, it can have regard.
(2) Without prejudice to the generality of subsection (1), the Board shall consider—
(a) the F397[environmental impact assessment report] submitted under section 37E(1), any submissions or observations made, in response to the invitation referred to in section 37E(3), within the period referred to in that provision, the report (and the recommendations and record, if any, attached to it) submitted by a planning authority in accordance with section 37E(4), any information furnished in accordance with section 37F(1) and any other relevant information before it relating to—
(i) the likely consequences of the proposed development for proper planning and sustainable development in the area in which it is proposed to situate the development, and
(ii) the likely effects on the environment of the proposed development,
(b) any report or recommendation prepared in relation to the application in accordance with section 146, including the report of the person conducting any oral hearing of the proposed development and the written record of any meeting referred to in section 37F(3),
(c) the provisions of the development plan or plans for the area,
(d) the provisions of any special amenity area order relating to the area,
(e) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(f) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(g) the matters referred to in section 143,
(h) any relevant provisions of this Act and of any regulations made under this Act.
(3) The Board may, in respect of an application under section 37E for permission—
(a) decide—
(i) to grant the permission, or
(ii) to make such modifications to the proposed development as it specifies in its decision and grant permission in respect of the proposed development as so modified, or
(iii) to grant permission in respect of part of the proposed development (with or without specified modifications of it of the foregoing kind),
or
(b) decide to refuse to grant the permission,
and a decision to grant permission under paragraph (a)(i), (ii) or (iii) may be subject to or without conditions.
(4) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board shall not, where it decides to grant permission, subject that permission to conditions which are for the purposes of—
(a) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation or the activity.
(5) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board may, in respect of that development, decide to refuse a grant of permission under this section, where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development will be situated.
(6) The Board may decide to grant a permission for development, or any part of a development, under this section even if the proposed development, or part thereof, contravenes materially the development plan relating to any area in which it is proposed to situate the development.
(7) Without prejudice to the generality of the Board’s powers to attach conditions under subsection (3) the Board may attach to a permission for development under this section—
(a) a condition with regard to any of the matters specified in section 34(4),
(b) a condition requiring the payment of a contribution or contributions of the same kind as the appropriate planning authority could require to be paid under section 48 or 49 (or both) were that authority to grant the permission (and the scheme or schemes referred to in section 48 or 49, as appropriate, made by that authority shall apply to the determination of such contribution or contributions),
(c) a condition requiring the applicant to submit further information to it or any other local or state authority, as the Board may specify before commencing development, or
(d) a condition requiring—
(i) the construction or the financing, in whole or in part, of the construction of a facility, or
(ii) the provision or the financing, in whole or in part, of the provision of a service,
in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.
(8) A condition attached pursuant to subsection (7)(d) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant of the permission.
(9) In subsection (7)(b) ‘appropriate planning authority ’means whichever planning authority would, but for the enactment of section 3 of the Planning and Development (Strategic Infrastructure) Act 2006, be the appropriate planning authority to grant the permission referred to in this section.
(10) The conditions attached under this section to a permission may provide that points of detail relating to the grant of the permission may be agreed between the planning authority or authorities in whose functional area or areas the development will be situate and the person carrying out the development; if that authority or those authorities and that person cannot agree on the matter the matter may be referred to the Board for determination.
(11) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005, a reference, however expressed, in this section or sections 37H to 37J to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.]
Annotations
Amendments:
F396
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F397
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 19, in effect as per reg. 2(1).
F398
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(e)(i), not commenced as of date of revision.
F399
Substituted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(e)(ii), not commenced as of date of revision.
F400
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 15, not commenced as of date of revision.
Modifications (not altering text):
C73
Prospective affecting provision: subs. (4A) inserted and subs. (5) amended by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(a), not commenced as of date of revision.
F398[(4A) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which an abstraction licence is required, the Board shall not, where it decides to grant permission, subject that permission to conditions which are for the purposes of controlling the abstraction related to the operation of the activity.]
(5) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which F399[an integrated pollution control licence, an abstraction licence] or a waste licence is required, the Board may, in respect of that development, decide to refuse a grant of permission under this section, where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development will be situated.
C74
Prospective affecting provision: subs. (7A) inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 15, not commenced as of date of revision.
F400[(7A) Notwithstanding subsection (3), where the Board grants permission for a development on foot of an application accompanied by an opinion issued by the Board under section 37CD(2) the permission shall include a condition in respect of any detail of the development that was not confirmed at the time of the application requiring—
(a) the actual detail to fall within specified options, parameters or a combination of options and parameters, and
(b) the applicant to notify the planning authority in whose functional area or areas the development is situated in writing, by such date prior to the commencement of the development, or prior to the commencement of the part of the development to which the detail relates, as the Minister may prescribe, of the actual detail of the development.]
F401[Section 37G: supplemental provisions.
37H.— (1) The Board shall send a copy of a decision under section 37G to the applicant, to any planning authority in whose area the development would be situated and to any person who made submissions or observations on the application for permission.
F402[(1A) (a) The Board shall cause to be published F403[as soon as may be] in one or more newspapers circulated in the area a notice informing the public of a decision under section 37G.
(b) The notice shall state that a person may question the validity of any such decision by the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(c) The notice shall identify where practical information on the review mechanism can be found.]
(2) A decision given under section 37G and the notification of the decision shall state—
(a) F404[subject to paragraph (ba),] the main reasons and considerations on which the decision is based,
(b) F405[subject to paragraph (bb),] where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions, F406[…]
F407[(ba) in relation to the granting or refusal of any permission, where a decision (being a decision which arises from the consideration of the environmental impact assessment report concerned) by the Board to grant or refuse permission is different from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the main reasons for not accepting the recommendation in the last-mentioned report to grant or refuse permission,
(bb) where a decision to impose a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report concerned) in relation to the grant of any permission is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on the application for permission on behalf of the Board, the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition,
(bc) in relation to the granting or refusal of any permission, subject to or without conditions, that the Board is satisfied that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision, and]
F408[(c) the sum due to be paid to the Board towards the costs incurred by the Board of—
(i) conducting consultations entered into by an applicant under section 37B,
(ii) compliance by the Board with a request by an applicant for an opinion of the Board under section 37D, or
(iii) determining an application under section 37E,
and, in such amount as the Board considers to be reasonable, state the sum to be paid and direct the payment of the sum to any planning authority that incurred costs during the course of consideration of that application and to any other person as a contribution to the costs incurred by that person during the course of consideration of that application (each of which sums the Board may, by virtue of this subsection, require to be paid).]
F409[(2A) A decision given under section 37G and the notification of the decision shall include a summary of the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.]
(3) A reference to costs in subsection (2)(c) shall be construed as a reference to such costs as the Board in its absolute discretion considers to be reasonable costs, but does not include a reference to so much of the costs there referred to as have been recovered by the Board by way of a fee charged under section 144.
(4) A grant of permission under section 37G shall be made as soon as may be after the making of the relevant decision but shall not become operative until any requirement made under subsection (2)(c) in relation to the payment by the applicant of a sum in respect of costs has been complied with.
(5) Where an applicant for permission fails to pay a sum in respect of costs in accordance with a requirement made under subsection (2)(c) the Board, the authority or any other person concerned (as may be appropriate) may recover the sum as a simple contract debt in any court of competent jurisdiction.
(6) A person shall not be entitled solely by reason of a permission under section 37G to carry out any development.]
Annotations
Amendments:
F401
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F402
Inserted (13.07.2010) by European Communities (Public Participation) Regulations 2010 (S.I. No. 352 of 2010), reg. 10(b).
F403
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(a), in effect as per reg. 2(1).
F404
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(b)(i), in effect as per reg. 2(1).
F405
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(b)(ii)(I), in effect as per reg. 2(1).
F406
Deleted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(b)(ii)(II), in effect as per reg. 2(1).
F407
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(b)(iii), in effect as per reg. 2(1).
F408
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 26, S.I. No. 405 of 2010.
F409
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 10(c), in effect as per reg. 2(1).
Editorial Notes:
E179
Previous affecting provision: subs. (2)(c) inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006, substituted as per F-note above.
F410[
Regulations.
37I.— (1) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of—
(a) consultations under section 37B,
(b) the giving of an opinion under section 37D,
(c) applications for permission under section 37E, and
(d) decisions under section 37G.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) make provision for matters of procedure in relation to the making of an application under section 37E, including the giving of public notice and the making of applications in electronic form, and
(b) make provision for matters of procedure relating to the making of observations by the Environmental Protection Agency under section 37F(5) and matters connected therewith.]
Annotations
Amendments:
F410
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F411
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 16, not commenced as of date of revision.
Modifications (not altering text):
C75
Prospective affecting provision: subs. (1)(c) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 16, not commenced as of date of revision.
(c) applications for permission under section 37E F411[including applications accompanied by an opinion under section 37CD(2)], and
Editorial Notes:
E180
Power pursuant to section exercised (4.11.2021) by Planning and Development (Amendment) (No. 3) Regulations 2021 (S.I. No. 588 of 2021).
E181
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E182
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011 (S.I. No. 476 of 2011).
E183
Power pursuant to section exercised (31.03.2007) by Planning and Development (No. 2) Regulations 2007 (S.I. No. 135 of 2007).
E184
Power pursuant to section exercised (21.12.2006, 31.01.2007 and 31.03.2007) by Planning and Development Regulations 2006 (S.I. No. 685 of 2006).
F412[
Objective of the Board in relation to applications under section 37E.
37J.— (1) It shall be the duty of the Board, having regard to the special importance of applications relating to development that may fall within section 37A(2), to ensure that—
(a) consultations held on foot of a request under section 37B are completed, and
(b) a decision under section 37G on an application made under section 37E is made,
as expeditiously as is consistent with proper planning and sustainable development and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the holding of those consultations or the making of that decision.
(2) Without prejudice to the generality of subsection (1) and subject to subsections (3) to (6), it shall be the objective of the Board to ensure that a decision under section 37G on an application made under section 37E is made—
(a) within a period of 18 weeks beginning on the last day for making submissions or observations in accordance with the notice referred to in section 37E(3)(a), or
(b) within such other period as the Minister may prescribe either generally or in respect of a particular class or classes of matter.
(3) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the matter with which the Board is concerned, to determine the matter within the period referred to in paragraph (a) or (b) of subsection (2) as the case may be, the Board shall, by notice in writing served on the applicant for permission, any planning authority involved and any other person who submitted submissions or observations in relation to the matter before the expiration of that period, inform the authority and those persons of the reasons why it would not be possible or appropriate to determine the matter within that period and shall specify the date before which the Board intends that the matter shall be determined.
(4) Where a notice has been served under subsection (3), the Board shall take all such steps as are open to it to ensure that the matter is determined before the date specified in the notice.
(5) The Minister may by regulations vary the period referred to in subsection (2)(a) either generally or in respect of a particular class or classes of applications referred to in section 37E, where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect in accordance therewith.
(6) Where the Minister considers it to be necessary or expedient that a certain class or classes of application under section 37E that are of special strategic, economic or social importance to the State be determined as expeditiously as is consistent with proper planning and sustainable development, he or she may give a direction to the Board that priority be given to the determination of applications of the class or classes concerned, and the Board shall comply with such a direction.
(7) The Board shall include in each report made under section 118 a statement of the number of matters which the Board has determined within a period referred to in paragraph (a) or (b) of subsection (2) and such other information as to the time taken to determine such matters as the Minister may direct.]
Annotations
Amendments:
F412
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F413[Nuclear installations: no development in respect of them authorised.
37K.— Nothing in this Act shall be construed as enabling the authorisation of development consisting of an installation for the generation of electricity by nuclear fission.]
Annotations
Amendments:
F413
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 3, S.I. No. 684 of 2006.
F414[
Quarry substitute consent applications — Board’s jurisdiction in relation to simultaneous applications for further development
37L.(1) Where an application for substitute consent is or was required to be made by the owner or operator of a quarry pursuant to subsection (7), (10) or (12) of section 261A, the owner or operator may apply for permission to further develop that quarry in accordance with this section.
(2) An application for permission to further develop a quarry under subsection (1) shall be made to the Board.
(3) An application for permission under subsection (1) may only be made for further development of a quarry as a quarry.
(4) Subject to subsections (5) and (6), an application under subsection (1) may be made not later than 6 weeks after the date of receipt by the Board of the application for substitute consent.
(5) Where prior to the date of the coming into operation of this section an application for substitute consent referred to in subsection (1) has been made in respect of a quarry, but no decision has been made by the Board in respect of that application prior to or on that date, an application for permission for further development of the quarry may be made under subsection (1) within 6 months of that date.
(6) No application may be made under subsection (1) where a decision has been made by the Board in respect of an application for substitute consent referred to in subsection (1) prior to or on the date of the coming into operation of this section.
(7) Where—
(a) subsection (5) applies, and
(b) the applicant informs the Board by notice in writing prior to it making its decision in respect of the application for substitute consent that the applicant intends to submit an application for permission under subsection (1),
the Board shall, notwithstanding section 177P(1), not make its decision on the application for substitute consent prior to—
(i) the day that is 6 months after the date of the coming into operation of this section,
(ii) the day the application for permission under subsection (1) is received by the Board, or
(iii) the day the applicant informs the Board by notice in writing that it no longer intends to submit an application for permission under subsection (1),
whichever is the earlier.
(8) Where the Board receives an application for permission under subsection (1) in respect of a quarry, it shall consider that application in conjunction with the application for substitute consent in respect of that quarry and it shall be the duty of the Board to take all such steps as are open to it to ensure that the decision under section 37N is made as soon as possible after the decision on the application for substitute consent.
(9) The Board, at its own discretion and at the request of a person intending to make an application under subsection (1), may enter into consultations with the person before that person makes an application under subsection (1).
(10) On receipt of an application under subsection (1), the Board shall send a copy of the application and, where relevant, any environmental impact statement or Natura impact statement to the planning authority or authorities in whose functional area or areas the proposed development would be situated.
(11) Where the Board considers that the proposed development is likely to have significant effects on the environment of a Member State of the European Union or a state which is a party to the Transboundary Convention, it shall send a copy of the application and, where relevant, any environmental impact statement or Natura impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may be made in writing to the Board within the period specified in that notice.
(12)(a) Where requested to do so by the Board, the planning authority for the functional area (or, as the case may be, each planning authority for the functional areas) in which the proposed development would be situated shall, within 6 weeks from the making of the request, prepare and submit to the Board a report setting out the views of the authority on the effects of the proposed development on the environment and the proper planning and sustainable development of the functional area of the authority, having regard in particular to the matters specified in section 34(2) to which a planning authority is to have regard.
(b) The Board may agree to extend the period specified in subparagraph (a), provided that such period of extension shall not exceed 6 weeks.
(c) The Board may make a decision under section 37N(3) notwithstanding that a planning authority has failed to submit a report requested under paragraph (a) within the time specified in that paragraph or within such period of extension as may have been agreed under paragraph (b).
(13) In addition to the report referred to in subsection (12), the Board may, where it considers it necessary to do so, require the planning authority or authorities referred to in that subsection or any planning authority or authorities on whose functional area or areas the proposed development would have a significant effect to furnish to the Board such information in relation to the effects of the proposed development on the proper planning and sustainable development of the functional area concerned and on the environment as the Board may specify.]
Annotations
Amendments:
F414
Inserted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 4.
F415
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 17(a), (c)-(f), not commenced as of date of revision, subject to transitional provision in s. 41(9), not commenced as of date of revision.
F416
Deleted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 17(b), (g)(i), not commenced as of date of revision, subject to transitional provision in s. 41(9), not commenced as of date of revision.
F417
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 17(g)(ii), (h)-(j), not commenced as of date of revision.
Modifications (not altering text):
C76
Prospective affecting provision: subs. (1) substituted, subs. (2) amended, subss. (3), (5), (6), (7) substituted, subss. (8), (10), (11), (12)(b) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 17(a)-(j), not commenced as of date of revision.
F415[(1) Where a person applies for substitute consent in respect of development of land under section 177E, the person may also apply for permission for the following:
(a) development of the land the subject of the application for substitute consent;
(b) development of land adjoining the land the subject of the application for substitute consent.]
(2) An application for permission F416[…] under subsection (1) shall be made to the Board.
F415[(3) Development referred to in paragraph (a) or (b) of subsection (1) is not required to be the same as, or of the same description as, the development the subject of the application for substitute consent referred to in that subsection.]
…
F415[(5) Where prior to the date of the coming into operation of section 17 of the Planning and Development, Maritime and Valuation (Amendment) Act 2022 an application for substitute consent has been made under section 177E, but no decision has been made by the Board in respect of that application prior to or on that date, an application for permission may be made under subsection (1) as substituted by that section 17, within 6 months of that date.]
F415[(6) An application may not be made under subsection (1), as substituted by section 17 of the Planning and Development, Maritime and Valuation (Amendment) Act 2022, where a decision has been made by the Board in respect of the application for substitute consent referred to in subsection (1) as so substituted, prior to or on the date of the coming into operation of that section 17.]
F415[(7) Where—
(a) subsection (5), as substituted by section 17 of the Planning and Development, Maritime and Valuation (Amendment) Act 2022, applies, and
(b) the applicant for substitute consent informs the Board by notice in writing prior to it making its decision in respect of the application for substitute consent, in this subsection referred to as the “first application”, that he or she intends to submit an application for permission under subsection (1), as substituted by that section 17, in this subsection referred to as the “second application”,
the Board shall, notwithstanding section 177P(1), not make its decision on the first application prior to—
(i) the date that is 6 months after the date of the coming into operation of that section 17,
(ii) the date the second application is received by the Board, or
(iii) the date the applicant for substitute consent informs the Board by notice in writing that he or she no longer intends to submit a second application,
whichever is the earlier.]
(8) Where the Board receives an application for permission under subsection (1) F416[…], it shall consider that application in conjunction with the application for substitute consent F417[referred to in subsection (1)] and it shall be the duty of the Board to take all such steps as are open to it to ensure that the decision under section 37N is made as soon as possible after the decision on the application for substitute consent.
…
(10) On receipt of an application under subsection (1), the Board shall send a copy of the application and, where relevant, any F417[environmental impact assessment report] or Natura impact statement to the planning authority or authorities in whose functional area or areas the proposed development would be situated.
(11) Where the Board considers that the proposed development is likely to have significant effects on the environment of a Member State of the European Union or a state which is a party to the Transboundary Convention, it shall send a copy of the application and, where relevant, any F417[environmental impact assessment report] or Natura impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may be made in writing to the Board within the period specified in that notice.
(12)(a) …
(b) The Board may agree to extend the period specified in F417[paragraph (a)], provided that such period of extension shall not exceed 6 weeks.
…
F418[Section 37L: supplemental provisions
37M.(1) Before making a decision in relation to an application for permission under section 37L the Board may, at its absolute discretion and at any time—
(a) require the applicant for permission to submit further information, including a revised environmental impact statement or Natura impact statement,
(b) indicate that it is considering granting permission, subject to the applicant for permission submitting revised particulars, plans or drawings in relation to the development,
(c) request submissions or observations from the applicant for permission, any person who made written submissions or observations concerning the proposed development to it in accordance with the permission regulations, or any other person who may, in the opinion of the Board, have information which is relevant to the making of the decision in relation to the application, or
(d) make any information relating to the application available for inspection, notify any person or the public that the information is so available and, if it considers appropriate, invite further submissions or observations to be made to it within such period as it may specify.
(2) The Board may, at any time after the expiration of the period specified in a notice issued under the permission regulations for making submissions or observations, make its decision under section 37N on the application.]
Annotations
Amendments:
F418
Inserted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 4.
F419
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 18, not commenced as of date of revision.
Modifications (not altering text):
C77
Prospective affecting provision: subs. (1)(a) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 18, not commenced as of date of revision.
(a) require the applicant for permission to submit further information, including a revised F419[environmental impact assessment report] or Natura impact statement,
F420[
Decision by Board on application under section 37L
37N.(1) When making a decision in relation to an application under section 37L, the Board shall consider all information relating to the application provided to it under this Act and any matter to which, by virtue of this Act, it can have regard.
(2) Without prejudice to the generality of subsection (1), the Board shall consider—
(a)(i) any environmental impact statement or Natura impact statement submitted,
(ii) any submissions or observations made to it,
(iii) any report submitted by a planning authority in accordance with section 37L(12),
(iv) any information furnished in accordance with section 37L(13),
(v) any information furnished in accordance with section 37M(1), and
(vi) any other relevant information before it relating to—
(I) the likely consequences of the proposed development for proper planning and sustainable development in the area in which it is proposed to situate the development, and
(II) the likely effects on the environment of the proposed development,
(b) any report or recommendation prepared in relation to the application in accordance with section 146, including any report of a person conducting an oral hearing of the proposed development,
(c) the provisions of the development plan or plans for the area,
(d) the provisions of any special amenity area order relating to the area,
(e) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(f) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact, and
(g) the matters referred to in section 143.
(3) The Board may, in respect of an application under section 37L for permission, decide to grant the permission, subject to or without conditions, or to refuse it.
(4) The Board may decide to grant a permission for development, or any part of a development, under this section even if the proposed development, or part thereof, contravenes materially the development plan relating to any area in which it is proposed to situate the development where it considers that—
(a) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(b) permission for the proposed development should be granted having regard to guidelines under section 28 or any relevant policy of the Government, the Minister or any Minister of the Government.
(5) Where the Board grants a permission in accordance with subsection (4)(b), the Board shall, in addition to the requirements of section 37O(4), indicate in its decision the main reasons and considerations for contravening materially the development plan.
(6) Without prejudice to the generality of the Board’s powers to attach conditions under subsection (3) the Board may attach to a permission for development under this section—
(a) a condition with regard to any of the matters specified in section 34(4),
(b) a condition requiring the payment of a contribution or contributions of the same kind as the appropriate planning authority could require to be paid under section 48 or 49 (or both) were that authority to grant the permission (and the scheme or schemes referred to in section 48 or 49, as appropriate, made by that authority shall apply to the determination of such contribution or contributions in the same way as if the authority were to impose the condition), or
(c) a condition requiring the applicant to submit further information to it or any other local or state authority, as the Board may specify before commencing development.
(7) In subsection (6)(b) ‘appropriate planning authority’ means whichever planning authority would, but for the operation of section 37L, be the appropriate planning authority to grant the permission referred to in this section or, where the development is situated in the functional area of more than one planning authority, the planning authority in whose functional area the largest portion of the development, as determined by the Board by reference to area, is situated.
(8) The conditions attached under this section to a permission may provide that points of detail relating to the grant of the permission may be agreed between the planning authority or authorities in whose functional area or areas the development will be situate and the person carrying out the development; if that authority or those authorities and that person cannot agree on the point of detail, the point of detail may be referred to the Board for determination.
(9) The Board shall not grant a permission in respect of an application under section 37L that—
(a) is not made in accordance with, or
(b) does not comply with the requirements of,
the permission regulations.]
Annotations
Amendments:
F420
Inserted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 4.
F421
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 19, not commenced as of date of revision.
Modifications (not altering text):
C78
Prospective affecting provision: subs. (2)(a)(i) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 19, not commenced as of date of revision.
(a)(i) any F421[environmental impact assessment report] or Natura impact statement submitted,
F422[Section 37N: supplemental provisions
37O.(1) The Board shall send a copy of a decision under section 37N, as soon as may be after the making of the decision, to—
(a) the applicant,
(b) any planning authority in whose functional area the development would be situated, and
(c) any person who made submissions or observations on the application for permission under section 37L to which the decision relates.
(2) A planning authority referred to in subsection (1) shall enter the details of the decision under section 37N in the register.
(3)(a) Where an environmental impact statement was submitted with the application for permission under section 37L to which the decision relates, the Board shall cause to be published on its website a notice informing the public of the decision under section 37N.
(b) The notice under paragraph (a) shall state that a person may question the validity of the decision by the Board to which the notice relates by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50.
(c) The notice under paragraph (a) shall identify where practical information on the review mechanism can be found.
(4) A decision given under section 37N and a notice of the decision required to be given under subsection (3) shall state—
(a) the main reasons and considerations on which the decision is based,
(b) where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions, and
(c) where a decision by the Board under section 37N to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the main reasons for not accepting the recommendation in the report to grant or refuse permission.
(5) A grant of permission under section 37N shall be made as soon as may be after the making of the relevant decision.
(6) A person shall not be entitled solely by reason of a permission under section 37N to carry out any development.]
Annotations
Amendments:
F422
Inserted (14.07.2015) by European Union (Environmental@newline@Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2014), reg. 4.
F423
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 20(a), not commenced as of date of revision.
F424
Deleted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 20(b)(i), not commenced as of date of revision.
F425
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 20(b)(ii), (iii), not commenced as of date of revision.
Modifications (not altering text):
C79
Prospective affecting provision: subss. (3)(a), (4)(b) amended, subs. (4)(ba)-(bc) inserted and subs. (4)(c) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 20(a), (b)(i)-(iii), not commenced as of date of revision.
(3)(a) Where an F423[environmental impact assessment report] was submitted with the application for permission under section 37L to which the decision relates, the Board shall cause to be published on its website a notice informing the public of the decision under section 37N.
(4) …
(b) where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions, F424[…]
F425[(ba) where a decision to impose a condition (being an environmental condition which arises from the consideration of an environmental impact assessment report) is materially different, in relation to the terms of the condition, from a recommendation in a report of a person assigned to report on the application for permission on behalf of the Board, the main reasons for not accepting or for varying the recommendation in relation to such condition,
(bb) in relation to the grant or refusal of any permission, subject to or without conditions, that the Board is satisfied, where an environmental impact assessment was carried out, that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision,
(bc) in summary form, the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and how those results have been incorporated into the decision or otherwise addressed, and]
(c) where a decision by the Board under section 37N F425[(being a decision which arises from the consideration of the environmental impact assessment report concerned)] to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the main reasons for not accepting the recommendation in the report to grant or refuse permission.
F426[
Regulations
37P.(1) The Minister shall make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for permission under section 37L and decisions under section 37N.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) make provisions for the payment of fees to the Board, and
(b) make provision for matters of procedure in relation to the making of an application under section 37L, including the giving of public notice and the making of applications in electronic form.]
Annotations
Amendments:
F426
Inserted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 4.
F427
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 21(1), not commenced as of date of revision, subject to transitional provisions in subss. (2)-(4).
Modifications (not altering text):
C80
Prospective affecting provision: subss. (1), (2) substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 21(1), not commenced as of date of revision, subject to tranisitional provisions in subss. (2)-(4).
F427[(1) The Minister shall make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for permission under section 37L and decisions under section 37N.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) make provision for the payment of fees to the Board, and
(b) make provision for matters of procedure in relation to the making of an application under section 37L, including the giving of public notice and the making of applications in electronic form.]
C81
Prospective affecting provision: SIs made under section continued in force by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 21(2)-(4), not commenced as of date of revision.
(2) All regulations made under section 37P of the Principal Act and in force immediately before the date of the coming into operation of subsection (1) shall be deemed on and after that date to have been made under section 37P of the Principal Act as amended by subsection (1).
(3) Every act done, or purporting to have been done, under the regulations referred to in subsection (2) before the date of the coming into operation of subsection (1) shall on and after that date be, and be deemed always to have been, valid and effectual for all purposes.
(4) If subsection (2) or (3) would, but for this subsection, conflict with a constitutional right of any person, the operation of the subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.
Editorial Notes:
E185
Power pursuant to section exercised (10.09.2015) by Planning and Development (Amendment) (No. 3) Regulations 2015 (S.I. No. 387 of 2015).
E186
Power pursuant to section exercised (16.07.2015) by Planning and Development (Amendment) (No. 2) Regulations 2015 (S.I. No. 310 of 2015), in effect as per reg. 2.
F428[
Objective of the Board in relation to applications under section 37L
37Q.(1) It shall be the duty of the Board to ensure that a decision under section 37N on an application made under section 37L is made as expeditiously as is consistent with proper planning and sustainable development and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the making of that decision.
(2) Without prejudice to the generality of subsection (1) and subject to subsections (3) to (5), it shall be the objective of the Board to ensure that a decision under section 37N on an application made under section 37L is made within a period of 18 weeks beginning on the later of—
(a) the date of receipt of the application, or
(b) where a report requested under section 37L(12)(a) is received within the time specified in that paragraph or within such period of extension as may have been agreed under section 37L(12)(b), the date of receipt of that report.
(3) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the matter with which the Board is concerned, to determine the matter within the period referred to in subsection (2), the Board shall, by notice in writing served on the applicant for permission, any planning authority involved and any other person who submitted submissions or observations in relation to the matter before the expiration of that period, inform the authority and those persons of the reasons why it would not be possible or appropriate to determine the matter within that period and shall specify the date before which the Board intends that the matter shall be determined.
(4) Where a notice has been served under subsection (3), the Board shall take all such steps as are open to it to ensure that the matter is determined before the date specified in the notice.
(5) The Board shall include in each report made under section 118 a statement of the number of matters which the Board has determined within the period referred to in subsection (2) and such other information as to the time taken to determine such matters as the Minister may direct.]
Annotations
Amendments:
F428
Inserted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 4.
TEST1
F429[Supplementary provisions relating to decisions on applications referred to in section 34B(1) or 34C(1) which were not refused by virtue of section 34B(5) or 34C(5)
37R. (1) (a) This section applies in addition to section 37 in the case of an appeal under section 37 against a decision of the planning authority under section 34 where, pursuant to section 34B(15) or 34C(16), that decision incorporates a regulatory decision of the competent authority under section 34B(13)(a) or 34C(14)(a), as the case may be.
(b) The competent authority shall be a party to the appeal notwithstanding section 34B(15)(b) or 34C(16)(b).
(2) For the purposes of a relevant appeal, the reference in section 37(1) to ‘any person who made submissions or observations in writing in relation to the planning application to the planning authority’ includes any person who made submissions or observations in writing referred to in section 34B(11)(c) or 34C(12)(c) to the competent authority in relation to the draft regulatory decision or related report referred to in section 34B(9) or (10), as the case may be, or section 34C(10) or (11), as the case may be.
(3) (a) Subsections (1) to (3) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to the Board’s consideration of the relevant appeal as if any reference to the competent authority in those subsections were a reference to the Board.
(b) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions forming part of the Board’s consideration of the relevant appeal as those subsections apply to measures and restrictions referred to in those subsections.
(c) The Board may, in its decision on the relevant appeal and its related report (subsection (7)(a)), accept or reject all or any part of either or both—
(i) the relevant regulatory decision the subject of the appeal, or
(ii) the report prepared under section 34B(10) and revised under section 34B(13)(b), or prepared under section 34C(11) and revised under section 34C(14)(b), as appropriate, which relates to such relevant regulatory decision.
(4) (a) Paragraphs (b) and (c) apply where the Board is considering, in its determination of the relevant appeal in so far as the appeal relates to the relevant regulatory decision, adopting noise mitigation measures or operating restrictions (if any), or a combination thereof, which were not, during the process that gave rise to the relevant regulatory decision, the subject of previous consultation conducted by the competent authority pursuant to section 34B or 34C, as the case may be.
(b) Subsection (12) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to the Board and the decision it is minded to make on the relevant appeal as if any reference to the competent authority in that subsection were a reference to the Board and as if any reference in that subsection to the draft regulatory decision were a reference to the decision that the Board is minded to make on the relevant appeal.
(c) The Board shall—
(i) publish on its website a draft of the decision it is minded to make on the relevant appeal in so far as the decision relates to the relevant regulatory decision—
(I) identifying all the noise mitigation measures and operating restrictions (if any) proposed to be adopted by the Board and not just such measures and restrictions (if any) referred to in paragraph (a), and
(II) stating, at a minimum, the Board’s reasons for the draft decision and having annexed to it the related report (subsection (4)(b)),
and
(ii) on the same date as complying with subparagraph (i) (or as soon as is practicable thereafter), publish a notice on its website and in a national newspaper—
(I) stating that the Board has made a draft decision under paragraph (c)(i) on the relevant appeal in so far as the appeal relates to the relevant regulatory decision and prepared the related report (subsection (4)(b)),
(II) stating particulars of how persons may view or otherwise have access to the draft decision and related report (subsection (4)(b)) (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the Board during office hours),
(III) inviting persons to make submissions or observations in writing (and to provide a return address with such submissions or observations) in the specified form (if any) on the draft decision (including any annex thereto) before the expiration of 14 weeks beginning on the date on which the notice was so published in the national newspaper, and
(IV) stating particulars of the addresses (which shall include an electronic address) to which such submissions or observations may be sent.
(5) (a) The Board shall, as soon as is practicable after it complies with subsection (4), give each of the appellant and the other parties to the relevant appeal a copy of the draft decision referred to in subsection (4)(c)(i).
(b) For the avoidance of doubt, it is hereby declared that the appellant and the other parties to the relevant appeal may each make submissions or observations referred to in subsection (4)(c)(ii)(II) in accordance with that subsection.
(6) (a) Where subsection (4) applies, the Board shall, as soon as is practicable after it complies with paragraph (c) of that subsection, by notice in writing direct the airport authority to—
(i) engage in discussions with the Irish Aviation Authority and operators of aircraft in the airport concerning the technical feasibility of, and other alternatives to, the noise mitigation measures or operating restrictions (if any), or the combination thereof, the subject of the draft decision referred to in subsection (4)(c)(i), and
(ii) inform the Board of the outcome of those discussions before the expiration of the 14 weeks referred to in subsection (4)(c)(ii)(II).
(b) The airport authority shall comply with a direction given to it under paragraph (a).
(7) The Board shall, as soon as is practicable after it makes a decision on the relevant appeal in so far as the appeal relates to the relevant regulatory decision—
(a) publish on its website the first-mentioned decision, in so far as it so relates, to which is annexed a report prepared by the Board in relation to such decision stating the Board’s reasons for such decision and including therein—
(i) such of the matters referred to in paragraphs (a) to (j) of subsection (10) of section 34B or paragraphs (a) to (j) of subsection (11) of section 34C, as the case may be, as are appropriate (which inclusion may be achieved, at the Board’s discretion, by the adoption by it of any part of the report concerned referred to in subsection (3)(c)(ii)), and
(ii) if subsection (4) applies, the related report (subsection (4)(b)) revised by the Board to take into account all documents, submissions or observations (if any), and such other information, given to it pursuant to a provision of this section and to take into account the first-mentioned decision in so far as it so relates,
(b) on the same date as complying with paragraph (a) (or as soon as is practicable thereafter), publish a notice on its website and in a national newspaper stating—
(i) that it has made a decision on the relevant appeal in so far as the appeal relates to the relevant regulatory decision,
(ii) particulars of how persons may view or otherwise have access to such decision (including any annex thereto) in so far as it so relates (which shall include being able to view the decision, or purchase a copy of the decision at a reasonable cost, at the offices of the Board during office hours), and
(iii) that a person may question the validity of the Board’s decision on the relevant appeal (including such decision in so far as it relates to the relevant regulatory decision) by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with section 50,
(c) send a copy of such decision (whether with or without any annex thereto), together with the notice referred to in paragraph (b) (whether before or after the notice is published), to the appellant, the other parties to the relevant appeal and (if the airport authority is neither the appellant nor another party to the relevant appeal) the airport authority, and
(d) if subsection (4) applied, send a copy of such decision (whether with or without any annex thereto), together with the notice referred to in paragraph (b) (whether before or after the notice is published), to the return addresses of the persons who have made submissions or observations referred to in subsection (4)(c)(ii)(II) in accordance with that subsection on the draft decision concerned.
(8) Where the Board has failed to make a decision under section 37 as read with this section in relation to the relevant appeal within the period it is required to do so by a provision of this Act and becomes aware, whether through notification by the appellant or otherwise, that it has so failed, the Board shall nevertheless proceed to make such decision and the decision so made shall be considered to have been made under section 37 notwithstanding such failure.
(9) Subject to subsection (10), a noise mitigation measure to be introduced by virtue of a decision on the relevant appeal in so far as the decision relates to the relevant regulatory decision shall—
(a) come into effect on the day immediately following the day on which, pursuant to subsection (7), that first-mentioned decision is published on the website of the Board, and
(b) after coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the Board.
(10) The Board may, by notice published on its website on the same date as the decision first-mentioned in subsection (9) is, pursuant to subsection (7), also so published—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of a noise mitigation measure to be introduced by virtue of that decision, and
(b) specify the date, or the occurrence of the event, on which such noise mitigation measure shall come into effect.
(11) Subject to section 26 (b) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, the Board shall, in relation to an operating restriction to be introduced by virtue of a decision on the relevant appeal in so far as the decision relates to the relevant regulatory decision, take such steps as it considers appropriate to cause Article 8 of the Aircraft Noise Regulation to be complied with as soon as is practicable after it applies to such restriction.
(12) Subject to subsection (13), an operating restriction to which subsection (11) applies shall—
(a) come into effect on the day immediately following the day on which the operation of Article 8 of the Aircraft Noise Regulation ceases to further prevent the coming into effect of the operating restriction, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.
(13) The Board may, by notice published on its website at any time before the day first-mentioned in subsection (12)(a)—
(a) authorise, for reasons stated in the notice, a lead in time for the coming into effect of the operating restriction to which subsection (12) applies, and
(b) specify the date, or the occurrence of the event, on which such operating restriction shall come into effect.
(14) In this section—
“related report (subsection (4)(b))” means the report (if any) prepared by the Board pursuant to subsection (4)(b);
“related report (subsection (7)(a))” means the report prepared by the Board pursuant to subsection (7)(a);
“relevant appeal” means an appeal referred to in subsection (1)(a);
“relevant regulatory decision”, in relation to a relevant appeal, means the relevant regulatory decision referred to in subsection (1) which is incorporated into the planning authority’s decision under section 34 that is the subject of the relevant appeal.]
Annotations
Amendments:
F429
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 12, S.I. No. 403 of 2019.
F430[Supplementary provisions relating to decisions on applications referred to in section 34B(1) or 34C(1)
37S. (1) (a) This section applies in addition to section 37 in the case of an appeal under section 37 against a decision of the planning authority under section 34 where—
(i) pursuant to section 34B(1)(a), the competent authority concludes that it is not of the opinion referred to in section 34B(1)(a)(iii), or
(ii) pursuant to section 34B(5) or 34C(5), that decision is to refuse the application concerned.
(b) The competent authority shall be a party to the appeal notwithstanding section 34B(5)(d) or 34C(5)(d).
(2) Without prejudice to the generality of the Board’s powers under section 37, or under section 37 as read with any other provision of this Act, the Board shall, in determining the appeal—
(a) where subsection (1)(a)(i) applies, take into account such of the provisions of section 34B following subsection (1) of such section 34B, and of section 26 (b) (with all necessary modifications) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, as are, in the Board’s opinion, relevant to the appeal,
(b) where the refusal referred to in subsection (1)(a)(ii) arises from the operation of section 34B(5), take account of such of the provisions of section 34B following subsection (5) of such section 34B, and of section 26(b) (with all necessary modifications) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, as are, in the Board’s opinion, relevant to the appeal, or
(c) where the refusal referred to in subsection (1)(a)(ii) arises from the operation of section 34C(5), take account of such of the provisions of section 34C following subsection (5) of such section 34C, and of section 26(b) (with all necessary modifications) of the Aircraft Noise (Dublin Airport) Regulation Act 2019, as are, in the Board’s opinion, relevant to the appeal.
(3) Subsections (1) to (3) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to—
(a) the Board’s consideration of the appeal in so far as such consideration relates to—
(i) a conclusion referred to in subsection (1)(a)(i), or
(ii) a refusal referred to in subsection (1)(a)(ii),
and
(b) the Board’s determination of the appeal in so far as it so relates as referred to in paragraph (a),
as if any reference to the competent authority in those subsections (1) to (3) of that section 9 were a reference to the Board.
(4) Subsections (4) to (7) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to measures and restrictions forming part of the Board’s consideration of the appeal as those subsections apply to measures and restrictions referred to in those subsections.
(5) Subsection (12) of section 9 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 shall, with all necessary modifications, apply to—
(a) the Board and the decision it is minded to make on the appeal in so far as such decision relates to—
(i) a conclusion referred to in subsection (1)(a)(i), or
(ii) a refusal referred to in subsection (1)(a)(ii),
and
(b) the Board’s determination of the appeal in so far as it so relates as referred to in paragraph (a),
as if any reference to the competent authority in such subsection (12) were a reference to the Board and as if any reference in such subsection (12) to the draft regulatory decision were a reference to the decision that the Board is minded to make on such appeal.]
Annotations
Amendments:
F430
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 12, S.I. No. 403 of 2019.
Chapter III
Appeal Procedures, etc.
F562[Appeals, referrals and applications with which the Board is concerned.
125.—F563[(1)] This Chapter shall apply—
(a) to appeals and referrals to the Board, and
(b) to the extent provided, to applications made to the Board F564[under section 37E or section 37L] and any other matter with which the Board may be concerned,
but shall not apply to appeals under section 182(4)(b).]
F563[(2) This Chapter (other than sections 126, 127, 128, 129, 130, 131, 132, 133 and 134) shall apply to—
(a) applications under section 291, and
(b) requests under section 297.]
Annotations
Amendments:
F562
Substituted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 20, S.I. No. 684 of 2006.
F563
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 17, S.I. No. 488 of 2022.
F564
Substituted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 6.
Modifications (not altering text):
C118
Para. (b) construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 17, S.I. No. 270 of 2017.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 125 (appeals, referrals and applications with which the Board is concerned) of Act of 2000 during specified period
17. Section 125 of the Act of 2000 has effect during the specified period as if the following were substituted for paragraph (b):
“(b) (i) to the extent provided, to applications made to the Board under section 37E or section 37L,
(ii) except where otherwise provided for by the Planning and Development (Housing) and Residential Tenancies Act 2016, to applications made to the Board under section 4 of that Act, and
(iii) to any other matter with which the Board may be concerned,”.
Duty and objective of Board in relation to appeals and referrals.
126.—(1) It shall be the duty of the Board to ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the determination of appeals and referrals.
(2) Without prejudice to the generality of subsection (1) and subject to subsections (3), (4) and (5), it shall be the objective of the Board to ensure that every appeal or referral is determined within—
(a) a period of 18 weeks beginning on the date of receipt by the Board of the appeal or referral, or
(b) such other period as the Minister may prescribe in accordance with subsection (4), either generally or in respect of a particular class or classes of appeals or referrals.
(3) (a) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of an appeal or referral or because of the number of appeals and referrals which have been submitted to the Board, to determine the appeal or referral within the period referred to in paragraph (a) or (b) of subsection (2), as the case may be, the Board shall, by notice in writing served on the parties to the appeal or referral before the expiration of that period, inform those parties of the reasons why it would not be possible or appropriate to determine the appeal or referral within that period and shall specify the date before which the Board intends that the appeal or referral shall be determined, and shall also serve such notice on each person who has made submissions or observations to the Board in relation to the appeal or referral.
(b) Where a notice has been served under paragraph (a), the Board shall take all such steps as are open to it to ensure that the appeal or referral is determined before the date specified in the notice.
(4) The Minister may by regulations vary the period referred to in subsection (2)(a) either generally or in respect of a particular class or classes of appeals or referrals where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and for so long as such regulations are in force this section shall be construed and have effect in accordance therewith.
(5) Where the Minister considers it to be necessary or expedient that—
(a) appeals from decisions (of a specified class or classes) of planning authorities under section 34, or
(b) referrals of a specified class or classes,
relating to development of a class or classes of special strategic, economic or social importance to the State, be determined as expeditiously as is consistent with proper planning and sustainable development, the Minister may give a direction to the Board to give priority to the class or classes of appeals or referrals concerned, and the Board shall comply with such direction.
(6) The Board shall include in each report made under section 118 a statement of the number of appeals and referrals that it has determined within a period referred to in paragraph (a) or (b) of subsection (2) and such other information as to the time taken to determine appeals and referrals as the Minister may direct.
F565[
Time limits for LRD appeals
126A. (1) Notwithstanding section 126(2), and subject to subsections (3), (4) and (5), the Board shall determine an LRD appeal—
(a) where no oral hearing is held, within 16 weeks of the receipt by the Board of the appeal, or within such other period as may be prescribed under subsection (2),
(b) where an oral hearing is held, within such period as may be prescribed.
(2) The Minister may by regulations extend the period of 16 weeks referred to in subsection (1)(a), either generally or with reference to any particular category of LRD appeals, where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect in accordance therewith.
(3) Where the Board, within 16 weeks of the receipt of the LRD appeal, serves notice in accordance with regulations under section 142 requiring the applicant to give to the Board further information or to produce evidence in respect of the LRD appeal (referred to in this section as an “FI notice”), the Board shall make its decision on the appeal as follows:
(a) within 4 weeks of the FI notice being complied with; or
(b) if, within the period specified in paragraph (a), having considered the further information given or evidence produced in compliance with the FI notice, the Board—
(i) considers that it contains significant additional data which should be notified to the parties to the appeal, and
(ii) gives notice accordingly in writing to the parties to the appeal,
within 4 weeks beginning on the day on which that notice is given by the Board to the parties to the appeal.
(4) Where, in the case of an LRD appeal of a planning application accompanied by an environmental impact assessment report or a Natura impact statement, the Board serves an FI notice, the Board shall make its decision as follows:
(a) within 8 weeks of the FI notice being complied with; or
(b) if, within the period specified in paragraph (a), having considered the further information given or evidence produced in compliance with the FI notice, the Board—
(i) considers that it contains significant additional data which should be notified to the parties to the appeal, and
(ii) gives notice accordingly in writing to the parties to the appeal, within 8 weeks beginning on the day on which that notice is given by the Board to the parties to the appeal.
(5) Where an environmental impact assessment report is submitted to the Board under section 172(1C), or where a Natura impact statement is submitted to the Board under section 177T(5), the Board shall make its decision on the LRD appeal as follows:
(a) within 8 weeks commencing on the date on which the environmental impact assessment report or Natura impact statement, as the case may be, and a copy of the relevant public notice required in accordance with regulations under this Act, is received by the Board; or
(b) where the Board, within 8 weeks of the receipt of an environmental impact assessment report submitted under section 172(1C) or a Natura impact statement under section 177T(5), serves notice in accordance with regulations under section 142 requiring the applicant to give to the Board further information in relation to the environmental impact assessment report or Natura impact statement, as the case may be—
(i) within 8 weeks, in the case of further information in relation to the environmental impact assessment report, and within 4 weeks, in the case of further information in relation to the Natura impact statement, of the notice being complied with, or
(ii) if, within the period specified in subparagraph (i), having considered the further information given in compliance with the FI notice, the Board considers that it contains significant additional data which should be notified to the parties to the appeal, and gives notice accordingly in writing to the parties to the appeal, within 8 weeks, in the case of such further information given in relation to the environmental impact assessment report, and within 4 weeks, in the case of such further information given in relation to the Natura impact statement, beginning on the day on which that notice is given by the Board to the parties to the appeal.
(6) A person shall not question the validity of the determination of an LRD appeal by reason only that the appeal was not determined within the time periods specified in, or prescribed under, this section.]
Annotations:
Amendments:
F565
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 8, S.I. No. 715 of 2021.
Editorial Notes:
E279
Power pursuant to section exercsied (17.12.2021) by Planning and Development (Large-scale Residential Development) Regulations 2021 (S.I. No. 716 of 2021), in effect as per reg. 2.
F566[
Consequences of non-compliance with time limits for LRD appeals
126B. (1) Where on the expiry of a period specified in section 126A or prescribed under that section, as may be the case, in relation to an LRD appeal the Board has failed to determine the appeal and becomes aware, whether through notification by the appellant or otherwise, that it has so failed, the Board shall proceed to determine the appeal notwithstanding that the period has expired.
(2) Where it appears to the Board that it would not be possible, because of the particular circumstances of an LRD appeal or because of the number of LRD appeals which have been submitted to the Board, to determine the appeal within the period specified in section 126A or prescribed under that section, as may be the case, in relation to the LRD appeal the Board shall, by notice in writing served on the parties to the appeal before the expiration of that period, inform those parties of the reasons why it would not be possible to determine the appeal within that period and shall specify the date before which the Board intends that the appeal shall be determined, and shall also serve such notice on each person who has made submissions or observations to the Board in relation to the appeal.
(3) Where a notice has been served under subsection (2), the Board shall take all such steps as are open to it to ensure that the appeal is determined before the date specified in the notice.
(4) Where the period specified in subsection (1)(a), (3), (4) or (5), or prescribed under subsection (1)(b) or (2), of section 126A applies to an LRD appeal and the Board fails to determine the appeal within that period it shall pay €10,000 to the applicant for permission.
(5) Any sum payable under this section shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.
(6) The Board shall include in each report made under section 118 a statement of—
(a) the number of LRD appeals which the Board has determined within each of the time periods referred to in section 126A, and
(b) the number and the aggregate amount of all sums paid (if any) by the Board under subsection (4),
together with such other information as to the time taken to determine LRD appeals as the Minister may direct.]
Annotations:
Amendments:
F566
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 8, S.I. No. 715 of 2021.
Provisions as to making of appeals and referrals.
127.—(1) An appeal or referral shall—
(a) be made in writing,
(b) state the name and address of the appellant or person making the referral and of the person, if any, acting on his or her behalf,
(c) state the subject matter of the appeal or referral,
(d) state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based,
(e) in the case of an appeal under section 37 by a person who made submissions or observations in accordance with the permission regulations, be accompanied by the acknowledgement by the planning authority of receipt of the submissions or observations,
(f) be accompanied by such fee (if any) as may be payable in respect of such appeal or referral in accordance with section 144, and
(g) be made within the period specified for making the appeal or referral.
(2) (a) An appeal or referral which does not comply with the requirements of subsection (1) shall be invalid.
(b) The requirement of subsection (1)(d) shall apply whether or not the appellant or person making the referral requests, or proposes to request, in accordance with section 134, an oral hearing of the appeal or referral.
(3) Without prejudice to section 131 or 134, an appellant or person making the referral shall not be entitled to elaborate in writing upon, or make further submissions in writing in relation to, the grounds of appeal or referral stated in the appeal or referral or to submit further grounds of appeal or referral and any such elaboration, submissions or further grounds of appeal or referral that is or are received by the Board shall not be considered by it.
(4) (a) An appeal or referral shall be accompanied by such documents, particulars or other information relating to the appeal or referral as the appellant or person making the referral considers necessary or appropriate.
(b) Without prejudice to section 132, the Board shall not consider any documents, particulars or other information submitted by an appellant or person making the referral other than the documents, particulars or other information which accompanied the appeal or referral.
(5) An appeal or referral shall be made—
(a) by sending the appeal or referral by prepaid post to the Board,
(b) by leaving the appeal or referral with an employee of the Board at the offices of the Board during office hours (as determined by the Board), or
(c) by such other means as may be prescribed.
F567[
Submission of documents, etc. to Board by planning authorities.
128.— (1) Where an appeal or referral is made to the Board the planning authority concerned shall, within a period of 2 weeks beginning on the day on which a copy of the appeal or referral is sent to it by the Board, submit to the Board—
(a) in the case of an appeal under section 37—
(i) a copy of the planning application concerned and of any drawings, maps, particulars, evidence, F568[environmental impact assessment report], other written study or further information received or obtained by it from the applicant in accordance with regulations under this Act,
(ii) a copy of any submission or observation made in accordance with regulations under this Act in respect of the planning application,
(iii) a copy of any report prepared by or for the planning authority in relation to the planning application, and
(iv) a copy of the decision of the planning authority in respect of the planning application and a copy of the notification of the decision given to the applicant,
(b) in the case of any other appeal or referral, any information or documents in its possession which is or are relevant to that matter.
(2) The Board, in determining an appeal or referral, may take into account any fact, submission or observation mentioned, made or comprised in any document or other information submitted under subsection (1).]
Annotations
Amendments:
F567
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 21, S.I. No. 525 of 2006.
F568
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 21, in effect as per reg. 2(1).
Submissions or observations by other parties.
129.—(1) The Board shall, as soon as may be after receipt of an appeal or referral, give a copy thereof to each other party.
(2) (a) Each other party may make submissions or observations in writing to the Board in relation to the appeal or referral within a period of 4 weeks beginning on the day on which a copy of the appeal or referral is sent to that party by the Board.
(b) Any submissions or observations received by the Board after the expiration of the period referred to in paragraph (a) shall not be considered by the Board.
(3) Where no submissions or observations have been received from a party within the period referred to in subsection (2), the Board may without further notice to that party determine the appeal or referral.
(4) Without prejudice to section 131 or 134, a party shall not be entitled to elaborate in writing upon any submissions or observations made in accordance with subsection (2) or make any further submissions or observations in writing in relation to the appeal or referral and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.
Submissions or observations by persons other than parties.
130.—(1) (a) Any person other than a party may make submissions or observations in writing to the Board in relation to an appeal or referral, other than a referral under section 96(5).
(b) Without prejudice to subsection (4), submissions or observations may be made within the period specified in subsection (3) and any submissions or observations received by the Board after the expiration of that period shall not be considered by the Board.
(c) A submission or observation shall—
(i) be made in writing,
(ii) state the name and address of the person making the submission or observation and the name and address of any person acting on his or her behalf,
(iii) state the subject matter of the submission or observation,
(iv) state in full the reasons, considerations and arguments on which the submission or observation is based, and
(v) be accompanied by such fee (if any) as may be payable in accordance with section 144.
(2) Submissions or observations which do not comply with subsection (1) shall be invalid.
(3) The period referred to in subsection (1)(b) is—
(a) where notice of receipt of an F569[environmental impact assessment report] is published in accordance with regulations under section 172(5), the period of 4 weeks beginning on the day of publication of any notice required under those regulations,
(b) where notice is required by the Board to be given under section 142(4), the period of 4 weeks beginning on the day of publication of the required notice,
(c) in any other appeal under this Act, the period of 4 weeks beginning on the day of receipt of the appeal by the Board or, where there is more than one appeal against the decision of the planning authority, on the day on which the Board last receives an appeal, or
(d) in the case of a referral, the period of 4 weeks beginning on the day of receipt by the Board of the referral.
(4) Without prejudice to section 131 or 134, a person who makes submissions or observations to the Board in accordance with this section shall not be entitled to elaborate in writing upon the submissions or observations or make further submissions or observations in writing in relation to the appeal or other matter and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.
F570[(5) Subsections (1)(b) and (4) shall not apply to submissions or observations made by a Member State or another state which is a party to the Transboundary Convention, arising from consultation in accordance with the Environmental Impact Assessment Directive or the Transboundary Convention, as the case may be, in relation to the effects on the environment of the development to which the appeal under section 37 relates.]
Annotations
Amendments:
F569
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 22, in effect as per reg. 2(1).
F570
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 25, S.I. No. 474 of 2011.
Editorial Notes:
E280
Previous affecting provision: subs. (5) amended (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 42, S.I. No. 405 of 2010; substituted as per F-note above.
Power of Board to request submissions or observations.
131.—Where the Board is of opinion that, in the particular circumstances of an appeal or referral, it is appropriate in the interests of justice to request—
(a) any party to the appeal or referral,
(b) any person who has made submissions or observations to the Board in relation to the appeal or referral, or
(c) any other person or body,
to make submissions or observations in relation to any matter which has arisen in relation to the appeal or referral, the Board may, in its discretion, notwithstanding section 127(3), 129(4), 130(4) or 137(4)(b), serve on any such person F571[, other than the applicant for permission in the case of an LRD appeal,] a notice under this section—
(i) requesting that person, within a period specified in the notice (not being less than 2 weeks or more than 4 weeks beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and
(ii) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and without further notice to the person, pursuant to section 133, determine the appeal or referral.
Annotations:
Amendments:
F571
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 10(a), S.I. No. 715 of 2021.
Power of Board to require submission of documents, etc.
132.—(1) Where the Board is of opinion that any document, particulars or other information may be necessary for the purpose of enabling it to determine an appeal or referral, the Board may, in its absolute discretion, serve on any party, or on any person who has made submissions or observations to the Board in relation to the appeal or referral, as appropriate, F572[, other than the applicant for permission in the case of an LRD appeal,] a notice under this section—
(a) requiring that person, within a period specified in the notice (being a period of not less than 2 weeks beginning on the date of service of the notice) to submit to the Board such document, particulars or other information as is specified in the notice, and
(b) stating that, in default of compliance with the requirements of the notice, the Board will, after the expiration of the period so specified and without further notice to the person, pursuant to section 133, dismiss or otherwise determine the appeal or referral.
(2) Nothing in this section shall be construed as affecting any other power conferred on the Board under this Act to require the submission of further or additional information or documents.
Annotations:
Amendments:
F572
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 10(b), S.I. No. 715 of 2021.
Powers of Board where notice served under section 131 or 132.
133.—Where a notice has been served under section 131 or 132, the Board, at any time after the expiration of the period specified in the notice, may, having considered any submissions or observations or document, particulars or other information submitted by the person on whom the notice has been served, without further notice to that person determine or, in the case of a notice served under section 132, dismiss the appeal or referral.
F573[
Oral hearings of appeals, referrals and applications.
134.—(1) The Board may in its absolute discretion, hold an oral hearing of an appeal, a referral under section 5 or an application under section 37E.
(2) (a) A party to an appeal or a referral under section 5 or an applicant under section 37E or any person who makes a submission or observation under section 37E may request an oral hearing of the appeal, referral or application, as appropriate.
(b) (i) A request for an oral hearing of an appeal, referral or application shall be made in writing to the Board and shall be accompanied by such fee (if any) as may be payable in respect of the request in accordance with section 144.
(ii) A request for an oral hearing of an appeal, referral or application which is not accompanied by such fee (if any) as may be payable in respect of the request shall not be considered by the Board.
(c) (i) A request by an appellant for an oral hearing of an appeal under section 37 shall be made within the appropriate period referred to in that section and any request received by the Board after the expiration of that period shall not be considered by the Board.
(ii) Where a provision of this Act, other than sections 37 and 254(6), authorising an appeal to the Board enables the appeal only to be made within, or before the expiration of, a specified period or before a specified day, a request by an appellant for an oral hearing of an appeal may only be made within, or before the expiration of, the specified period or before the specified day and any request for an oral hearing not so received by the Board shall not be considered by the Board.
(iii) A request by a person making a referral, by an applicant under section 37E or by an appellant under section 254(6) for an oral hearing of the referral, application or appeal, as the case may be, shall accompany the referral, application or appeal, and any request for an oral hearing received by the Board, other than a request which accompanies the referral, application or appeal, shall not be considered by the Board.
(d) A request by a party to an appeal or referral other than the appellant, or by a person who makes a submission or observation in relation to an application under section 37E, for an oral hearing shall be made—
(i) in respect of an appeal or referral, within the period referred to in section 129(2)(a) within which the party may make submissions or observations to the Board in relation to the appeal or referral,
(ii) in respect of an application under section 37E, within the period specified in a notice under that section within which the person may make submissions or observations to the Board in relation to the application,
and any such request received by the Board after the expiration of that period shall not be considered by the Board.
(3) Where the Board is requested to hold an oral hearing of an appeal, referral or application and decides to determine the appeal, referral or application without an oral hearing, the Board shall serve notice of its decision on—
(a) the person who requested the hearing and on each other party to the appeal or referral or, as appropriate, (unless he or she was the requester) the applicant under section 37E, and
(b) each person who has made submissions or observations to the Board in relation to the appeal, referral or application (not being the person who was the requester).
(4) (a) A request for an oral hearing may be withdrawn at any time.
(b) Where, following a withdrawal of a request for an oral hearing under paragraph (a), the appeal, referral or application falls to be determined without an oral hearing, the Board shall give notice that it falls to be so determined—
(i) to each other party to the appeal or referral or, as appropriate, (unless he or she was the person who withdrew the request) the applicant under section 37E, and
(ii) to each person who has made submissions or observations to the Board in relation to the appeal, referral or application (not being the person who withdrew the request).]
Annotations
Amendments:
F573
Substituted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 22, S.I. No. 684 of 2006.
Modifications (not altering text):
C119
Section construed during specified period (3.07.2017 to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 18, S.I. No. 270 of 2017 and S.I. No. 598 of 2019.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 134 (oral hearings of appeals, referrals and applications) of Act of 2000 during specified period
18. Section 134 of the Act of 2000 has effect during the specified period—
(a) as if the following were substituted for subsection (1):
“(1) (a) The Board may in its absolute discretion, hold an oral hearing of an appeal, a referral under section 5, an application under section 37E or, subject to paragraph (b), an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016.
(b) Before deciding if an oral hearing for an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 should be held, the Board—
(i) shall have regard to the exceptional circumstances requiring the urgent delivery of housing as set out in the Action Plan for Housing and Homelessness, and
(ii) shall only hold an oral hearing if it decides, having regard to the particular circumstances of the application, that there is a compelling case for such a hearing.
(c) In paragraph (b) ‘Action Plan for Housing and Homelessness’ means the document entitled ‘Rebuilding Ireland – Action Plan for Housing and Homelessness’ published by the Government on 19 July 2016.”,
(b) as if in subsection (2)(a) “, or under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “section 37E” where it first occurs,
(c) as if in subsection (2)(a) “or under the said section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “section 37E” where it last occurs,
(d) as if in subsection (2)(c)(iii) “, or under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “section 254(6) ”,
(e) as if in subsection (2)(d) “or under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “section 37E” where it first occurs,
(f) as if in subsection (2)(d) there were inserted the following after subparagraph (ii):
“(iii) in respect of an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016, within the period specified in a notice under section 8 of that Act within which the person may make submissions or observations to the Board in relation to the application,”,
(g) as if in subsection (3)(a) “or under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “section 37E”, and
(h) as if in subsection (4)(b)(i) “or under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “section 37E”.
Editorial Notes:
E281
Previous affecting provision: subsection inserted (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(c), S.I. No. 458 of 2001; substituted as per F-note above.
F574[ Further power to hold oral hearings.
134A.— (1) Where the Board considers it necessary or expedient for the purposes of making a determination in respect of any of its functions under this Act or any other enactment, it may, in its absolute discretion, hold an oral hearing and shall, in addition to any other requirements under this Act or other enactment, as appropriate, consider the report and any recommendations of the person holding the oral hearing before making such determination.
(2) Section 135 shall apply to any oral hearing held in accordance with subsection (1) and that section shall be construed accordingly.
(3) This section is in addition to section 134.]
Annotations
Amendments:
F574
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 22, S.I. No. 684 of 2006.
Supplemental provisions relating to oral hearings.
135.—F575[(1) The Board or an employee of the Board duly authorised by the Board may assign a person to conduct an oral hearing of an appeal, referral or application on behalf of the Board.
(2) The person conducting an oral hearing of an appeal, referral or application shall have discretion as to the conduct of the hearing and shall conduct the hearing expeditiously and without undue formality (but subject to any direction F576[given by the Board under subsection (2A) or (2AB))].
(2A) The Board may give a direction to the person conducting an oral hearing that he or she shall require persons intending to appear at the hearing to submit to him or her, in writing and in advance of the hearing, the points or a summary of the arguments they propose to make at the hearing; where such a direction is given that person shall comply with it (and, accordingly, is enabled to make such a requirement).
F577[(2AB) The Board may in its absolute discretion, following a recommendation in relation to the matter from a person assigned to make a written report under section 146, give a direction to a person assigned to conduct an oral hearing that he or she shall allow points or arguments in relation to specified matters only during the oral hearing.
(2AC) Where a direction is given by the Board under subsection (2AB) the person to whom it is given shall comply with the direction unless that person forms the opinion that it is necessary, in the interests of observing fair procedures, to allow a point or an argument to be made during the oral hearing in relation to matters not specified in the direction.
(2AD) The Board shall give a notice of its direction under subsection (2AB) to—
(a) each party, in the case of an appeal or referral,
(b) the applicant and planning authority in the case of an application—
(i) under this Act,
(ii) for a railway order under the Act of 2001, or
(iii) for approval under section 51 of the Roads Act 1993, and
(c) each person who has made objections, submissions or observations to the Board in the case of an appeal, referral or application.
(2AE) The points or summary of the arguments that a person intending to appear at the oral hearing shall submit to the person conducting the hearing, where a direction has been given under subsection (2A) or (2AB), shall be limited to points or arguments in relation to matters specified in the direction under subsection (2AB).]
(2B) Subject to the foregoing provisions, the person conducting the oral hearing—
(a) shall decide the order of appearance of persons at the hearing,
(b) shall permit any person to appear in person or to be represented by another person,
(c) may limit the time within which each person may make points or arguments (including arguments in refutation of arguments made by others at the hearing), or question the evidence of others, at the hearing,
(d) may refuse to allow the making of a point or an argument if—
(i) the point or a summary of the argument has not been submitted in advance to the person in accordance with a requirement made pursuant to a direction given under subsection (2A),
(ii) the point or argument is not relevant to the subject matter of the hearing, or
(iii) it is considered necessary so as to avoid undue repetition of the same point or argument,
F577[(dd) may refuse to allow the making of a point or an argument in relation to any matter where—
(i) a direction has been given under subsection (2AB) and the matter is not specified in the direction, and
(ii) he or she has not formed the opinion referred to in subsection (2AC).]
(e) may hear a person other than a person who has made submissions or observations to the Board in relation to the subject matter of the hearing if it is considered appropriate in the interests of justice to allow the person to be heard.
(3) A person conducting an oral hearing of any appeal, application or referral may require any officer of a planning authority or a local authority to give to him or her any information in relation to the appeal, application or referral which he or she reasonably requires for the purposes of the appeal, application or referral, and it shall be the duty of the officer to comply with the requirement.]
(4) A person conducting an oral hearing of any F575[appeal, referral or application] may take evidence on oath or affirmation and for that purpose may administer oaths or affirmations, and a person giving evidence at any such hearing shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.
(5) (a) Subject to paragraph (b), the Board in relation to an oral hearing of any F575[appeal, referral or application] may, by giving notice in that behalf in writing to any person, require that person to do either or both of the following:
(i) to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing;
(ii) to produce any books, deeds, contracts, accounts, vouchers, maps, plans, documents or other information in his or her possession, custody or control which relate to any such matter.
(b) Where a person is given a notice under paragraph (a):
(i) the Board shall pay or tender to any person whose attendance is required such reasonable subsistence and travelling expenses to be determined by the Board in accordance with the rates for the time being applicable to senior planning authority officials;
(ii) any person who in compliance with a notice has attended at any place shall, save in so far as the reasonable and necessary expenses of the attendance have already been paid to him or her, be paid those expenses by the Board, and those expenses shall, in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction.
(6) Every person to whom a notice under subsection (5) has been given who refuses or wilfully neglects to attend in accordance with the notice or who wilfully alters, suppresses, conceals or destroys any document or other information to which the notice relates or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document or other information to which the notice relates shall be guilty of an offence.
(7) Where any person—
(a) wilfully gives evidence which is material to the oral hearing and which he or she knows to be false or does not believe to be true,
(b) by act or omission, obstructs or hinders the person conducting the oral hearing in the performance of his or her functions,
(c) refuses to take an oath or to make an affirmation when legally required to do so by a person holding the oral hearing.
(d) refuses to answer any question to which the person conducting an oral hearing may legally require an answer, or
(e) does or omits to do any other thing which, if the inquiry had been by the High Court, would have been contempt of that court,
the person shall be guilty of an offence.
(8) (a) An oral hearing may be conducted through the medium of the Irish or the English language.
(b) Where an oral hearing relates to development within the Gaeltacht, the hearing shall be conducted through the medium of the Irish language, unless the parties to the F575[appeal, referral or application] to which the hearing relates agree that the hearing should be conducted in English.
(c) Where an oral hearing relates to development outside the Gaeltacht, the hearing shall be conducted through the medium of the English language, unless the parties to the F575[appeal, referral or application] to which the hearing relates agree that the hearing should be conducted in the Irish language.
Annotations
Amendments:
F575
Substituted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 23, S.I. No. 684 of 2006.
F576
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 26(a), S.I. No. 474 of 2011.
F577
Inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 26(b) and (c), S.I. No. 474 of 2011.
Editorial Notes:
E282
Previous affecting provision: section amended by Planning and Development (Amendment) Act 2010 (30/2010), s. 43, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
E283
Previous affecting provision: original version of subs. (2) substituted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 23, S.I. No. 684 of 2006; substituted as per F-note above.
Convening of meetings on referrals.
136.—(1) Where it appears to the Board to be expedient or convenient for the purposes of determining a referral under section 34(5), 96(5) or 193(2), the Board may, in its absolute discretion, convene a meeting of the parties.
(2) The Board shall keep a record in writing of a meeting convened in accordance with this section and a copy of the record shall be placed and kept with the documents to which the referral concerned relates and, where the referral is connected with an appeal, with the documents to which the appeal concerned relates.
Matters other than those raised by parties.
137.—(1) The Board in determining an appeal or referral may take into account matters other than those raised by the parties or by any person who has made submissions or observations to the Board in relation to the appeal or referral if the matters are matters to which, by virtue of this Act, the Board may have regard.
(2) The Board shall give notice in writing to each of the parties and to each of the persons who have made submissions or observations in relation to the appeal or referral of the matters that it proposes to take into account under subsection (1) and shall indicate in that notice—
(a) in a case where the Board proposes to hold an oral hearing of the appeal or referral, or where an oral hearing of the appeal or referral has been concluded and the Board considers it expedient to re-open the hearing, that submissions in relation to the matters may be made to the person conducting the hearing, or
(b) in a case where the Board does not propose to hold an oral hearing of the appeal or referral, or where an oral hearing of the appeal or referral has been concluded and the Board does not consider it expedient to re-open the hearing, that submissions or observations in relation to the matters may be made to the Board in writing within a period specified in the notice (being a period of not less than 2 weeks or more than 4 weeks beginning on the date of service of the notice).
(3) Where the Board has given notice, in accordance with subsection (2)(a), the parties and any other person who is given notice shall be permitted, if present at the oral hearing, to make submissions to the Board in relation to the matters which were the subject of the notice or which, in the opinion of the person conducting the hearing, are of relevance to the appeal or referral.
(4) (a) Submissions or observations that are received by the Board after the expiration of the period referred to in subsection (2)(b) shall not be considered by the Board.
(b) Subject to section 131, where a party or a person referred to in subsection (1) makes submissions or observations to the Board in accordance with subsection (2)(b), that party or person shall not be entitled to elaborate in writing upon those submissions or observations or make further submissions or observations in writing in relation to the matters referred to in subsection (1) and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.
Board may dismiss appeals or referrals if vexatious, etc.
138.—(1) The Board shall have an absolute discretion to dismiss an appeal or referral—
F578[(a) where, having considered the grounds of appeal or referral or any other matter to which, by virtue of this Act, the Board may have regard in dealing with or determining the appeal or referral, the Board is of the opinion that the appeal or referral—
(i) is vexatious, frivolous or without substance or foundation, or
(ii) is made with the sole intention of delaying the development or the intention of securing the payment of money, gifts, consideration or other inducement by any person,]
or
(b) where, the Board is satisfied that, in the particular circumstances, the appeal or referral should not be further considered by it having regard to—
(i) the nature of the appeal (including any question which in the Board’s opinion is raised by the appeal or referral), or
(ii) any previous permission which in its opinion is relevant.
(2) A decision made under this section shall state the main reasons and considerations on which the decision is based.
(3) The Board may, in its absolute discretion, hold an oral hearing under section 134 to determine whether an appeal or referral is made with an intention referred to in subsection (1)(a)(ii).
Annotations
Amendments:
F578
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 24, S.I. No. 525 of 2006.
Appeals against conditions.
139.—(1) Where—
(a) an appeal is brought against a decision of a planning authority to grant a permission,
(b) the appeal relates only to a condition or conditions that the decision provides that the permission shall be subject to, and
(c) the Board is satisfied, having regard to the nature of the condition or conditions, that the determination by the Board of the relevant application as if it had been made to it in the first instance would not be warranted,
then, subject to compliance by the Board with subsection (2), the Board may, in its absolute discretion, give to the relevant planning authority such directions as it considers appropriate relating to the attachment, amendment or removal by that authority either of the condition or conditions to which the appeal relates or of other conditions.
(2) In exercising the power conferred on it by subsection (1), apart from considering the condition or conditions to which the relevant appeal relates, the Board shall be restricted to considering—
F579[(a) the matters to which a planning authority shall have regard specified in paragraph (a) of subsection (2) of section 34,]
F580[(aa) in the case of the appeal of a decision of a planning authority in respect of development to which Chapter II of Part XXI applies or proposed such development, the matters referred to in paragraph (a) and the matters to which a planning authority shall have regard specified in subsection (2) of section 282,]
(b) the terms of any previous permission considered by the Board to be relevant.
Annotations:
Amendments:
F579
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 18, S.I. No. 488 of 2022.
F580
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 18, S.I. No. 488 of 2022.
Withdrawal of appeals, applications and referrals.
140.—F581[F582[(1) (a)A person who has made—
(i) an appeal,
(ii) a planning application to which an appeal relates,
(iii) a referral,
(iv) an application for permission or approval (as may be appropriate) in respect of a strategic infrastructure development, or
(v) an application for permission under section 37L F583[or 291],
may withdraw, in writing, the appeal, application or referral at any time before that appeal, application, or referral is determined by the Board.]
(b) As soon as maybe after receipt of a withdrawal, the Board shall notify each other party or person who has made submissions or observations on the appeal, application or referral of the withdrawal.]
(2) (a) Without prejudice to subsection (1), where the Board is of the opinion that an appeal or a planning application to which an appeal relates, F584[an application for permission or approval (as may be appropriate) F582[in respect of a strategic infrastructure development, an application for permission under section 37L] F583[or 291],] or a referral has been abandoned, the Board may serve on the person who made the appeal, application or referral, as appropriate, a notice stating that opinion and requiring that person, within a period specified in the notice (being a period of not less than two weeks or more than four weeks beginning on the date of service of the notice) to make to the Board a submission in writing as to why the appeal, application or referral should not be regarded as having been withdrawn.
(b) Where a notice has been served under paragraph (a), the Board may, at any time after the expiration of the period specified in the notice, and after considering the submission (if any) made to the Board pursuant to the notice, declare that the appeal, application or referral, as appropriate, shall be regarded as having been withdrawn.
(3) Where, pursuant to this section, a person withdraws a planning application to which an appeal relates, or the Board declares that an application is to be regarded as having been withdrawn, the following provisions shall apply as regards the application:
(a) any appeal in relation to the application shall be regarded as having been withdrawn and accordingly shall not be determined by the Board, and
(b) notwithstanding any previous decision under section 34 by a planning authority as regards the application, no permission shall be granted under that section by the authority on foot of the application.
Annotations
Amendments:
F581
Substituted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 25(a), S.I. No. 684 of 2006.
F582
Substituted (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 7.
F583
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 19, S.I. No. 488 of 2022.
F584
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 25(b), S.I. No. 684 of 2006.
Time for decisions and appeals, etc.
141.—(1) Where a requirement of or under this Act requires a planning authority or the Board to give a decision within a specified period and the last day of that period is a public holiday (within the meaning of the F585[Organisation of Working Time Act, 1997]) or any other day on which the offices of the planning authority or the Board are closed, the decision shall be valid if given on the next following day on which the offices of the planning authority or Board, as the case may be, are open.
(2) Where the last day of the period specified for making an appeal or referral is a Saturday, a Sunday, a public holiday (within the meaning of the F585[Organisation of Working Time Act, 1997]) or any other day on which the offices of the Board are closed, an appeal or referral shall (notwithstanding any other provision of this Act) be valid as having been made in time if received by the Board on the next following day on which the offices of the Board are open.
(3) Where a requirement of or under this Act requires submissions, observations or a request to be made, or documents, particulars or other information to be submitted, to the Board within a specified period and the last day of that period is a public holiday (within the meaning of the F585[Organisation of Working Time Act, 1997]) or any other day on which the offices of the Board are closed, the submissions, observations or request of documents, particulars or other information (as the case may be) shall be regarded as having been received before the expiration of that period if received by the Board on the next following day on which the offices of the Board are open.
Annotations
Amendments:
F585
Substituted (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(d), S.I. No. 458 of 2001.
Regulations regarding appeals and referrals.
142.—(1) The Minister may by regulations—
(a) provide for such additional, incidental, consequential or supplemental matters as regards procedure in respect of appeals as appear to the Minister to be necessary or expedient, and
(b) make such provision as regards procedure in respect of referrals as appear to the Minister to be necessary or expedient.
(2) Without prejudice to the generality of subsection (1), regulations under this section may enable the Board where it is determining an appeal under section 37 to invite an applicant and enable an applicant so invited to submit to the Board revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the appeal relates.
(3) Where plans, drawings or particulars referred to in subsection (2) are submitted to the Board in accordance with regulations under this section, the Board may, in determining the appeal, grant a permission for the relevant development as modified by all or any of the plans, drawings or particulars.
(4) Without prejudice to the generality of subsection (1), the Board may require any party to an appeal or referral to give such public notice in relation thereto as the Board may specify and, in particular, may require notice to be given at the site or by publication in a newspaper circulating in the district in which the land or structure to which the appeal or referral relates is situate.
F586[(6) Regulations under this section may make different provision with respect to appeals in relation to applications for permission for development made by the Central Bank of Ireland in the cases referred to in section 33(5), and such regulations may make provision modifying the operation of sections 132 and 146 in relation to such appeals.]
F587[(7) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) provide that the Board, where it is determining an LRD appeal, may, generally or in specified circumstances, serve a notice on the applicant for permission, requesting the applicant to submit such further information, or type of information, with respect to the appeal as may be prescribed in the regulations, within such time as may be specified in the notice, and
(b) require such applicant to submit further information in accordance such a request.]
Annotations
Amendments:
F586
Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 90(b), S.I. No. 287 of 2013.
F587
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 11, S.I. No. 715 of 2021.
Editorial Notes:
E284
There is no subs. (5) in the Act as enacted or amended.
E285
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011 (S.I. No. 476 of 2011).
E286
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
F588[
Board to have regard to certain policies and objectives.
143.— (1) F589[The Board shall, in the performance of its functions (other than functions conferred by Chapter III of Part XXI), have regard to]—
(a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and sustainable development of cities, towns or other areas, whether urban or rural,
(b) the national interest and any effect the performance of the Board’s functions may have on issues of strategic economic or social importance to the State, and
(c) the F590[National Planning Framework] and any F591[regional spatial and economic strategy] for the time being in force.
(2) In this section “public authority” means any body established by or under statute which is for the time being declared, by regulations made by the Minister, to be a public authority for the purposes of this section.]
Annotations
Amendments:
F588
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 26, S.I. No. 525 of 2006.
F589
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 20, S.I. No. 488 of 2022.
F590
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 18(2) and sch. 3 ref. no. 10, S.I. No. 436 of 2018.
F591
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 80, S.I. No. 214 of 2014.
Fees payable to Board.
144.— F592[(1) The Board may determine fees that may be charged, subject to the approval of the Minister, in relation to any matter referred to in subsection (1A) and a fee as so determined shall be payable to the Board by any person concerned as appropriate.
(1A) The matters in relation to which the Board may determine fees under subsection (1) are:
(a) an appeal or referral;
F593[(aa) an appeal to the Board under Part 2 of the Urban Regeneration and Housing Act 2015;]
(b) an application to the Board for any strategic infrastructure development or an application for leave to appeal under section 37(6)(a);
F594[(bb) an application under section 291 or a request under section 297;]
(c) an application for a consultation under section 37B, 181C, or 182E or under section 47B of the Act of 2001;
F595[(cd) the provision of an opinion or notification under section 287B,]
(d) a request under section 146B;
(e) a request for a written opinion on the information to be contained in an environmental impact assessment under section 173(3), under section 39 of the Act of 2001 or under section 50 of the Roads Act 1993;
(f) an application for leave to apply for substitute consent or an application for substitute consent under Part XA;
(g) submission of an F596[environmental impact assessment report] in accordance with a request by the Board to furnish same;
(h) submission of a Natura impact statement in accordance with a request by the Board to furnish same;
F597[(ha) a determination review or an application referral under section 176C;]
(i) request for an oral hearing under section 134 or 177Q; and
(j) making a submission or observation under section 37E, 37F, 130, 135(2B)(e), 146B, 146C, 146D, 175, 181A, 182A, 182C, 217B, or 226, F594[or pursuant to a notice under section 291 or 297 or an invitation under section 292, or under] section 51 of the Roads Act 1993, section 40 (other than by persons required to be served with a notice under section 40(1)(d)), section 41, or section 47D of the Act of 2001 or making an objection under section 48 of the Roads Act 1993 (other than by persons on whom notice is served under F598[section 48(b));]
F599[(k) an appeal under section 10 of the Aircraft Noise (Dublin Airport) Regulation Act 2019 against a relevant regulatory decision within the meaning of that section.]
(1B) The Board may, subject to the approval of the Minister, provide for the payment of different fees in relation to different classes or descriptions of matters referred to in subsection (1A)(a) to (j), for exemption from the payment of fees in specified circumstances and for the waiver, remission or refund in whole or in part of fees in specified circumstances.]
(2) The Board shall review the fees determined under subsection (1) from time to time, but at least every three years, having regard to any change in the consumer price index since the determination of the fees for the time being in force, and may amend the fees to reflect the results of that review, without the necessity of the Minister’s approval under subsection (1).
(3) For the purposes of this section, “change in the consumer price index” means the difference between the All Items Consumer Price Index Number last published by the Central Statistics Office before the date of the determination under this section and the said number last published before the date of the review under subsection (2), expressed as a percentage of the last-mentioned number.
(4) Where the Board determines or amends fees in accordance with this section, it shall give notice of the fees in at least one newspaper circulating in the State, not less than 8 weeks before the fees come into effect.
(5) Fees determined in accordance with regulations under section 10(1)(b) of the Act of 1982 shall continue to be payable to the Board in accordance with those regulations until such time as the Board determines fees in accordance with this section.
(6) The Board shall specify fees for the making of copies under section 5(6)(a), not exceeding the cost of making the copies.
Annotations
Amendments:
F592
Substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 44, S.I. No. 477 of 2010.
F593
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 30, S.I. No. 436 of 2018.
F594
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 21, S.I. No. 488 of 2022.
F595
Inserted (1.10.2022) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 71, S.I. No. 487 of 2022.
F596
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 23, in effect as per reg. 2(1).
F597
Inserted (1.01.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 27(b), S.I. No. 588 of 2018.
F598
Substituted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 14(a), S.I. No. 403 of 2019.
F599
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 14(b), S.I. No. 403 of 2019.
F600
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 24(a), not commenced as of date of revision.
F601
Deleted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 24(b), not commenced as of date of revision.
Modifications (not altering text):
C120
Prospective affecting provision: subs. (1A)(cc) inserted and subs. (1A)(f) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 24(a), (b), not commenced as of date of revision.
F600[(cc) the provision of an opinion or notification under section 37CD or 182G,]
…
(f) F601[…] an application for substitute consent under Part XA;
C121
Subs. (1A) construed in relation to fees payable relating to proposed strategic housing developments (2.02.2017) and during specified period (3.07.2017 to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 19, S.I. No. 31 of 2017, S.I. No. 270 of 2017 and S.I. No. 598 of 2019.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
Construction of section 144 (fees payable to Board) of Act of 2000 during specified period
19. Subsection (1A) of section 144 of the Act of 2000 has effect during the specified period—
(a) as if in paragraph (b) “or for any strategic housing development (within the meaning of section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016)” were inserted after “for any strategic infrastructure development”,
(b) as if in paragraph (c) “or a request for a consultation under section 5 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “the Act of 2001”,
(c) as if there were inserted the following after paragraph (d):
“(da) a request for a determination under section 7(1)(a) of the Planning and Development (Housing) and Residential Tenancies Act 2016;”,
(d) as if in paragraph (e) “or under section 7(1)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “section 173(3),”,
(e) as if there were inserted the following after paragraph (e):
“(ea) a request for an opinion in writing on what information will be required to be contained in a Natura impact statement under section 7(1)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016;”,
and
(f) as if in paragraph (j) “section 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 226,”.
Editorial Notes:
E287
Previous affecting provision: subs. (1) amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 27, S.I. No. 684 of 2006; substituted as per F-note above.
Expenses of appeal or referral.
145.—(1) Where an appeal or referral is made to the Board—
(a) the Board, if it so thinks proper and irrespective of the result of the appeal or referral, may direct the planning authority to pay—
(i) to the appellant or person making the referral, such sum as the Board, in its absolute discretion, specifies as compensation for the expense occasioned to him or her in relation to the appeal or referral, and
(ii) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the appeal or referral,
and
F602[(b) in case—
(i) the decision of the planning authority in relation to an appeal or referral is confirmed or varied and the Board, in determining the appeal or referral, does not accede in substance to the grounds of appeal or referral, or
(ii) the appeal or referral is decided, dismissed under section 138 or withdrawn under section 140 and the Board, in any of those cases, considers that the appeal or referral was made with the intention of delaying the development or securing a monetary gain by a party to the appeal or referral or any other person,
the Board may, if it so thinks proper, direct the appellant or person making the referral to pay—
(I) to the planning authority, such sum as the Board, in its absolute discretion, specifies as compensation to the planning authority for the expense occasioned to it in relation to the appeal or referral,
(II) to any of the other parties to the appeal or referral, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the expense occasioned to him or her in relation to the appeal or referral, and
(III) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the appeal or referral.]
(2) Any sum directed under this section to be paid shall, in default of being paid, be recoverable as a simple contract debt in any court of competent jurisdiction.
Annotations
Amendments:
F602
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 28, S.I. No. 525 of 2006.
Reports and documents of the Board.
146.—(1) The Board or an employee of the Board duly authorised by the Board may in connection with the performance of any of the Board’s functions under this Act, assign a person to report on any matter on behalf of the Board.
(2) A person assigned in accordance with subsection (1) shall make a written report on the matter to the Board, which shall include a recommendation, and the Board shall consider the report and recommendation before determining the matter.
F603[(3) Where, during the consideration by it of any matter falling to be decided by it in performance of a function under or transferred by this Act or any other enactment, the Board either—
(a) is required by or under this Act or that other enactment to supply to any person documents, maps, particulars or other information in relation to the matter, or
(b) considers it appropriate, in the exercise of its discretion, to supply to any person such documents, maps, particulars or information (“relevant material or information”),
subsection (4) applies as regards compliance with that requirement or such supply in the exercise of that discretion.
F604[(4) It shall be sufficient compliance with the requirement referred to in subsection (3) for the Board—
(a) where an environmental impact assessment report or a remedial environmental impact assessment report (as construed in accordance with section 177F), or both such reports, is or are, as the case may be, submitted with an application or request, or any such report is received by the Board in the course of considering an application, request or appeal, to place on its website for inspection and make available for inspection and purchase by members of the public at the offices of the Board from as soon as may be after receipt of such report—
(i) the application, request or appeal, as the case may be,
(ii) the environmental impact assessment report or remedial environmental impact assessment report, or both such reports, as the case may be,
(iii) the notice or notices, as the case may be, published in one or more newspapers circulating in the area in which it is proposed to carry out the development, or in which the development is located, indicating the nature and location of the proposed development or development, as the case may be,
(iv) any further information furnished by, or alterations to the terms of the development made by, or a revised environmental impact assessment report or a revised remedial environmental impact assessment report (as construed in accordance with section 177F), or both such reports, as the case may be, furnished by, the person who is proposing to carry out or who has carried out the development, as the case may be, and
(v) any other relevant material or information, or
(b) in any other case, to do both of the following (or, as appropriate, the Board, in the exercise of the discretion referred to in subsection (3), may do both of the following):
(i) make the relevant material or information available for inspection—
(I) at the offices of the Board or any other place, or
(II) by electronic means; and
(ii) notify the person concerned that the relevant material or information is so available for inspection.]
(5) Within 3 days following the making of a decision on any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment, the documents relating to the matter—
(a) shall be made available by the Board for inspection at the offices of the Board by members of the public, and
(b) may be made available by the Board for such inspection—
(i) at any other place, or
(ii) by electronic means,
as the Board considers appropriate.
(6) Copies of the documents referred to in subsection (5) and of extracts from such documents shall be made available for purchase at the offices of the Board, or such other places as the Board may determine, for a fee not exceeding the reasonable cost of making the copy.
F605[(7) The documents referred to in subsection (5) shall—
(a) where an environmental impact assessment was carried out, be made available for inspection on the Board’s website in perpetuity beginning on the third day following the making by the Board of the decision on the matter concerned, or
(b) where no environmental impact assessment was carried out, be made available by the means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third day following the making by the Board of the decision on the matter concerned.]]
Annotations
Amendments:
F603
Substituted and inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 29, S.I. No. 684 of 2006.
F604
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 12(a), in effect as per reg. 2(1).
F605
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 12(b), in effect as per reg. 2(1).
Chapter IV
Additional powers of Board in relation to permissions, decisions, approvals, etc.
Amendments of permissions, etc. of clerical or technical nature.
146A.— (1) Subject to subsection (2)—
(a) a planning authority or the Board, as may be appropriate, may amend a planning permission granted by it, or
(b) the Board may amend any decision made by it in performance of a function under or transferred by this Act or under any other enactment,
for the purposes of—
(i) correcting any clerical error therein,
(ii) facilitating the doing of any thing pursuant to the permission or decision where the doing of that thing may reasonably be regarded as having been contemplated by a particular provision of the permission or decision or the terms of the permission or decision taken as a whole but which was not expressly provided for in the permission or decision, or
(iii) otherwise facilitating the operation of the permission or decision.
(2) A planning authority or the Board shall not exercise the powers under subsection (1) if to do so would, in its opinion, result in a material alteration of the terms of the development, the subject of the permission or decision concerned.
(3) A planning authority or the Board, before it decides whether to exercise the powers under subsection (1) in a particular case, may invite submissions in relation to the matter to be made to it by any person who made submissions or observations to the planning authority or the Board in relation to the permission or other matter concerned, and shall have regard to any submissions made to it on foot of that invitation.
(4) In this section “term” includes a condition.]
Annotations
Amendments:
F606
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 30, S.I. No. 684 of 2006.
F607[
Alteration by Board of strategic infrastructure development on request made of it.
146B.— (1) Subject to subsections (2) to (8) and section 146C, the Board may, on the request of any person who is carrying out or intending to carry out a strategic infrastructure development, alter the terms of the development the subject of a planning permission F608[other than a development for which permission was granted under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016], approval or other consent granted under this Act.
(2) (a) As soon as practicable after the making of such a request, the Board shall make a decision as to whether the making of the alteration to which the request relates would constitute the making of a material alteration of the terms of the development concerned.
(b) Before making a decision under this subsection, the Board may invite submissions in relation to the matter to be made to it by such person or class of person as the Board considers appropriate (which class may comprise the public if, in the particular case, the Board determines that it shall do so); the Board shall have regard to any submissions made to it on foot of that invitation.
F609[(3)(a) If the Board decides that the making of the alteration would not constitute the making of a material alteration of the terms of the development concerned, it shall alter the planning permission, approval or other consent accordingly and notify the person who made the request under this section, and the planning authority or each planning authority for the area or areas concerned, of the alteration.
(b) If the Board decides that the making of the alteration would constitute the making of such a material alteration, it shall—
(i) by notice in writing served on the requester, require the requester to submit to the Board the information specified in Schedule 7A to the Planning and Development Regulations 2001 in respect of that alteration, or in respect of the alternative alteration being considered by it under subparagraph (ii)(II), unless the requester has already provided such information, or an environmental impact assessment report on such alteration or alternative alteration, as the case may be, to the Board, and
(ii) following the receipt of such information or report, as the case may be, determine whether to—
(I) make the alteration,
(II) make an alteration of the terms of the development concerned, being an alteration that would be different from that to which the request relates (but which would not, in the opinion of the Board, represent, overall, a more significant change to the terms of the development than that which would be represented by the latter alteration), or
(III) refuse to make the alteration.]
F610[(3A) Where the requester is submitting to the Board the information referred to in subsection (3)(b)(i), that information shall be accompanied by any further relevant information on the characteristics of the alteration under consideration and its likely significant effects on the environment including, where relevant, information on how the available results of other relevant assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive have been taken into account.
(3B) Where the requester is submitting to the Board the information referred to in subsection (3)(b)(i), that information may be accompanied by a description of the features, if any, of the alteration under consideration and the measures, if any, envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment of the alteration.]
(4) Before making a F611[determination under subsection (3)(b)(ii)], the Board shall determine whether the extent and character of—
(a) the alteration requested under subsection (1), and
(b) any alternative alteration it is considering under F612[subsection (3)(b)(ii)(II)]
are such that the alteration, were it to be made, would be likely to have significant effects on the environment (and, for this purpose, the Board shall have reached a final decision as to what is the extent and character of any alternative alteration the making of which it is so considering).
F613[(4A)(a) Subject to paragraph (b), within 8 weeks of receipt of the information referred to in subsection (3)(b)(i), the Board shall make its determination under subsection (4).
(b) Subject to paragraph (c), the Board shall not be required to comply with paragraph (a) within the period referred to in paragraph (a) where it appears to the Board that it would not be possible or appropriate, because of the exceptional circumstances of the alteration under consideration (including in relation to the nature, complexity, location or size of such alteration) to do so.
(c) Where paragraph (b) applies, the Board shall, by notice in writing served on the requester before the expiration of the period referred to in paragraph (a), inform him or her of the reasons why it would not be possible or appropriate to comply with paragraph (a) within that period and shall specify the date before which the Board intends that the determination concerned shall be made.]
(5) If the Board determines that the making of either kind of alteration referred to in F614[in subsection (3)(b)(ii)]—
(a) is not likely to have significant effects on the environment, it shall proceed to make a determination under F615[subsection (3)(b)(ii)], or
(b) is likely to have such effects, the provisions of section 146C shall apply.
(6) If, in a case to which subsection (5)(a) applies, the Board makes a determination to make an alteration of either kind referred to in F616[subsection (3)(b)(ii)], it shall alter the planning permission, approval or other consent accordingly and notify the person who made the request under this section, and the planning authority or each planning authority for the area or areas concerned, of the alteration.
F617[(7)(a) In making a determination under subsection (4), the Board shall have regard to—
(i) the criteria for the purposes of determining which classes of development are likely to have significant effects on the environment set out in any regulations made under section 176,
(ii) the criteria set out in Schedule 7 to the Planning and Development Regulations 2001,
(iii) the information submitted pursuant to Schedule 7A to the Planning and Development Regulations 2001,
(iv) the further relevant information, if any, referred to in subsection (3A) and the description, if any, referred to in subsection (3B),
(v) the available results, where relevant, of preliminary verifications or assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive, and
(vi) in respect of an alteration under consideration which would be located on, or in, or have the potential to impact on—
(I) a European site,
(II) an area the subject of a notice under section 16(2)(b) of the Wildlife (Amendment) Act 2000 (No. 38 of 2000),
(III) an area designated as a natural heritage area under section 18 of the Wildlife (Amendment) Act 2000,
(IV) land established or recognised as a nature reserve within the meaning of section 15 or 16 of the Wildlife Act 1976 (No. 39 of 1976),
(V) land designated as a refuge for flora or a refuge for fauna under section 17 of the Wildlife Act 1976,
(VI) a place, site or feature of ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan, draft development plan or draft local area plan, or proposed variation of a development plan, for the area in which the development is proposed, or
(VII) a place or site which has been included by the Minister for Culture, Heritage and the Gaeltacht in a list of proposed Natural Heritage Areas published on the National Parks and Wildlife Service website,
the likely significant effects of such alteration on such site, area, land, place or feature, as appropriate.
(b) The Board shall include, or refer to, in its determination under subsection (4) the main reasons and considerations, with reference to the relevant criteria listed in Schedule 7 to the Planning and Development Regulations 2001, on which the determination is based.]
F618[(7A) Where the determination of the Board under subsection (4) is that the alteration under consideration would not be likely to have significant effects on the environment and the applicant has, under subsection (3B), provided a description of the features, if any, of the alteration concerned and the measures, if any, envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment of the alteration concerned, the Board shall specify such features, if any, and such measures, if any, in the determination.]
(8) (a) Before making a determination under F619[a determination under subsection (3)(b)(ii)] or (4), the Board shall—
(i) make, or require the person who made the request concerned under subsection (1) to make, such information relating to that request available for inspection for such period,
(ii) notify, or require that person to notify, such person, such class of person or the public (as the Board considers appropriate) that the information is so available, and
(iii) invite, or require that person to invite, submissions or observations (from any foregoing person or, as appropriate, members of the public) to be made to it in relation to that request within such period,
as the Board determines and, in the case of a requirement under any of the preceding subparagraphs, specifies in the requirement; such a requirement may specify the means by which the thing to which it relates is to be done.
(b) The Board shall have regard to any submissions or observations made to it in accordance with an invitation referred to in paragraph (a).
(c) The Board shall notify any person who made a submission or observation to it in accordance with that invitation of its determination under F620[subsection (3)(b)(ii)] or (4).
(9) In this section “term” has the same meaning as it has in section 146A.]
Annotations
Amendments:
F607
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 30, S.I. No. 684 of 2006.
F608
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 12, S.I. No. 715 of 2021.
F609
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(a), in effect as per reg. 2(1).
F610
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(b), in effect as per reg. 2(1).
F611
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(c)(i), in effect as per reg. 2(1).
F612
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(c)(ii), in effect as per reg. 2(1).
F613
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(d), in effect as per reg. 2(1).
F614
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(e)(i), in effect as per reg. 2(1).
F615
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(e)(ii), in effect as per reg. 2(1).
F616
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(f), in effect as per reg. 2(1).
F617
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(g), in effect as per reg. 2(1).
F618
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(g), in effect as per reg. 2(1).
F619
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(h)(i), in effect as per 2(1).
F620
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 13(h)(ii), in effect as per 2(1).
Modifications (not altering text):
C122
Application of section restricted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 18(5), S.I. No. 403 of 2019.
Amendment of Seventh Schedule to Act of 2000 and related transitional provisions
18. …
(5) Sections 146B and 146C of the Act of 2000 shall, on and after the relevant day, cease to apply to a decision of the Board to grant permission under section 37G of that Act to a relevant development.
(6) In this section—
“planning authority” means a local authority within the meaning of section 2 of the Act of 2001;
“relevant day” means the day on which subsection (1) comes into operation;
“relevant development” means the development deleted, by subsection (1), from paragraph 2 of the Seventh Schedule to the Act of 2000.
F621[Preparation of environmental impact statement for purposes of section 146B.
146C.— (1) This section applies to a case where the determination of the Board under section 146B(4) is that the making of either kind of alteration referred to in F622[section 146B(3)(b)(ii)] is likely to have significant effects on the environment.
(2) In a case to which this section applies, the Board shall require the person who made the request under section 146B (“the requester”) to prepare an F623[environmental impact assessment report] in relation to the proposed alteration of the terms of the development concerned and, in this subsection and the following subsections of this section, “proposed alteration of the terms of the development concerned” means—
(a) the alteration referred to in F624[subsection (3)(b)(ii)(I) of that section], and
(b) any alternative alteration under F625[subsection (3)(b)(ii)(II) of that section] the making of which the Board is considering (and particulars of any such alternative alteration the making of which is being so considered shall be furnished, for the purposes of this subsection, by the Board to the requester).
(3) F626[An environmental impact assessment report] under this section shall contain—
(a) any information that any regulations made under section 177 require to be contained in F627[environmental impact assessment reports] generally under this Act, and
(b) any other information prescribed in any regulations made under section 177 to the extent that—
(i) such information is relevant to—
(I) the given stage of the consent procedure and to the specific characteristics of the development or type of development concerned, and
(II) the environmental features likely to be affected,
F628[…]
(ii) F629[…]
and
(c) a summary, in non-technical language, of the information referred to in paragraphs (a) and (b).
(4) F630[When an environmental impact assessment report] under this section is prepared, the requester shall as soon as may be—
(a) submit a copy of the F631[report] F632[and one electronic copy of the report (which shall be searchable by electronic means as far as practicable)] to the Board, together with either—
(i) a copy of the published notice referred to in paragraph (c), or
(ii) a copy of the notice proposed to be published in accordance with paragraph (c) together with details of its proposed publication and date,
F633[(aa) submit a copy of the confirmation notice to the Board,]
(b) publish a notice, in the prescribed form, in one or more newspapers circulating in the area in which the development concerned is proposed to be, or is being, carried out—
(i) stating that an F634[environmental impact assessment report] has been submitted to the Board in relation to the proposed alteration of the terms of the development concerned,
(ii) indicating the times at which, the period (which shall not be less than 4 weeks) during which and the place or places where a copy of the F635[environmental impact assessment report] may be inspected,
(iii) stating that a copy of the F636[environmental impact assessment report] may be purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy), and
(iv) stating that submissions or observations may be made in writing to the Board before a specified date (which date shall not be less than F637[30 days] after the notice was first published) in relation to the likely effects on the environment of the proposed alteration of the foregoing terms,
(c) send a copy of the F638[environmental impact assessment report] together with a notice in the prescribed form to the local authority or each local authority in whose functional area the proposed development would be situate and to any prescribed body or person stating that—
(i) the F639[report] has been submitted to the Board in relation to the proposed alteration of the terms of the development concerned,
(ii) before a specified date (which date shall be the same as provided or proposed to be provided for by the notice under paragraph (b)) submissions or observations may be made in writing to the Board in relation to the likely effects on the environment of the proposed alteration of the foregoing terms,
(d) send a copy of the F640[environmental impact assessment report], together with a notice in the prescribed form, to a Member State of the European Communities or a state which is a party to the Transboundary Convention where, in the Board’s opinion, the proposed alteration of the terms of the development concerned is likely to have significant effects on the environment in that state, together with a notice (in the prescribed form, if any) stating that—
(i) the F641[report] has been submitted to the Board in relation to the likely effects on the environment of the proposed alteration of the foregoing terms,
(ii) before a specified date (which date shall be the same as provided or proposed to be provided for by the notice under paragraph (b)) submissions or observations may be made in writing to the Board in relation to the likely effects on the environment in that state of the proposed alteration of those terms,
and the Board may, at its discretion and from time to time, extend any time limits provided for by this subsection.
(5) On the preceding subsections having been complied with, the Board shall, subject to subsections (6) and (7), proceed to make a determination under F642[section 146B(3)(b)(ii)] in relation to the matter.
(6) In making that determination, the Board shall, to the extent that they appear to the Board to be relevant, have regard to the following:
(a) the F643[environmental impact assessment report] submitted pursuant to subsection (4)(a), any submissions or observations made in response to the invitation referred to in subsection (4)(b) or (c) before the date specified in the notice concerned for that purpose and any other relevant information before it relating to the likely effects on the environment of the proposed alteration of the terms of the development concerned;
(b) where such alteration is likely to have significant effects on the environment in another Member State of the European Communities, or a state which is a party to the Transboundary Convention, the views of such Member State or party;
(c) the development plan or plans for the area in which the development concerned is proposed to be, or is being, carried out (referred to subsequently in this subsection as “the area”);
(d) the provisions of any special amenity area order relating to the area;
(e) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact;
(f) if the development concerned (were it to be carried out in the terms as they are proposed to be altered) would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact;
(g) the matters referred to in section 143;
(h) any social or economic benefit that would accrue to the State, a region of the State or the area were the development concerned to be carried out in the terms as they are proposed to be altered;
(i) commitments entered into and the stage at which the development concerned has progressed under the permission, approval or other consent in the terms as originally granted; and
(j) any relevant provisions of this Act and of any regulations made under this Act.
(7) The Board shall not make a determination under F644[section 146B(3)(b)(ii)] in a case to which this section applies at any time prior to the date specified, pursuant to subparagraph (iv) of subsection (4)(b), in the notice under subsection (4)(b).
(8) Where the Board makes a determination under F645[section 146B(3)(b)(ii)] in a case to which this section applies—
F646[(a) it shall—
(i) give public notice of the determination (including notice in the area in which the development concerned is proposed to be, or is being, carried out),
(ii) inform the prescribed bodies or persons sent a copy of the environmental impact assessment report in accordance with subsection (4)(c), and
(iii) inform any state to which an environmental impact assessment report has been sent under subsection (4)(d) of the determination, including, if the determination is of the kind referred to in paragraph (b), particulars of the determination, and]
(b) if the determination is a determination to make an alteration of either kind referred to in F647[section 146B(3)(b)(ii)], it shall alter the planning permission, approval or other consent accordingly and notify the requester of the alteration.
F648[(8A) Where the Board makes a determination under section 146B(3)(b)(ii) in a case to which this section applies, the determination shall—
(a) state the reasoned conclusion, in relation to the significant effects on the environment of the proposed alteration, on which the determination is based,
(b) where the determination (being a determination which arises from the consideration of the environmental impact assessment report concerned) by the Board to make an alteration of either kind referred to in section 146B(3)(b)(ii), or to refuse to make an alteration, is different from the recommendation in a report of a person assigned to report on the request on behalf of the Board, state the main reasons for not accepting the recommendation in the last-mentioned report, and
(c) include a summary of the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the determination or otherwise addressed.
(8B) Where the Board makes a determination under section 146B(3)(b)(ii), in a case to which this section applies, to make an alteration of either kind referred to in that section and imposes a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report concerned) in relation to the determination which is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on the request on behalf of the Board, the determination shall indicate the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition.
(8C) Where the Board makes a determination under section 146B(3)(b)(ii), in a case to which this section applies, to make an alteration of either kind referred to in that section, the determination shall be accompanied by a statement that the Board is satisfied that the reasoned conclusion on the significant effects on the environment of the alteration was up to date at the time of the making of the determination.]
(9) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005, a reference, however expressed, in this section to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.]
Annotations
Amendments:
F621
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 30, S.I. No. 684 of 2006.
F622
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(a), in effect as per reg. 2(1).
F623
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 24, in effect as per reg. 2(1).
F624
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(b)(i), in effect as per reg. 2(1).
F625
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(b)(ii), in effect as per reg. 2(1).
F626
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 25, in effect as per reg. 2(1).
F627
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 26, in effect as per reg. 2(1).
F628
Deleted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(c)(i), in effect as per reg. 2(1).
F629
Deleted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(c)(ii), in effect as per reg. 2(1).
F630
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 27, in effect as per reg. 2(1).
F631
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 28, in effect as per reg. 2(1).
F632
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) reg. 14(d)(i), in effect as per reg. 2(1).
F633
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(d)(ii), in effect as per reg. 2(1).
F634
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 29, in effect as per reg. 2(1).
F635
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 30, in effect as per reg. 2(1).
F636
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 31, in effect as per reg. 2(1).
F637
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(d)(iii), in effect as per reg. 2(1).
F638
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 32, in effect as per reg. 2(1).
F639
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 33, in effect as per reg. 2(1).
F640
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 34, in effect as per reg. 2(1).
F641
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 35, in effect as per reg. 2(1).
F642
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(e), in effect as per reg. 2(1).
F643
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 36, in effect as per reg. 2(1).
F644
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(f), in effect as per reg. 2(1).
F645
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(g)(i), in effect as per reg. 2(1).
F646
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(g)(ii), in effect as per reg. 2(1).
F647
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(g)(iii), in effect as per reg. 2(1).
F648
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 14(h), in effect as per reg. 2(1).
Modifications (not altering text):
C123
Application of section restricted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 18(5), S.I. No. 403 of 2019.
Amendment of Seventh Schedule to Act of 2000 and related transitional provisions
18. …
(5) Sections 146B and 146C of the Act of 2000 shall, on and after the relevant day, cease to apply to a decision of the Board to grant permission under section 37G of that Act to a relevant development.
(6) In this section—
“planning authority” means a local authority within the meaning of section 2 of the Act of 2001;
“relevant day” means the day on which subsection (1) comes into operation;
“relevant development” means the development deleted, by subsection (1), from paragraph 2 of the Seventh Schedule to the Act of 2000.
Editorial Notes:
E288
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
F649[
Provisions supplementary to sections 146B and 146C
146CA.— (1) (a) Paragraph (b) applies where a person—
(i) is carrying out or intending to carry out strategic infrastructure development and intends to make a request under section 146B(1), accompanied by an environmental impact assessment report, to the Board to alter the terms of the development, or
(ii) is required by the Board pursuant to section 146C to submit an environmental impact assessment report to the Board.
(b)(i) Subparagraph (ii) applies where, before a person submits an environmental impact assessment report to the Board, he or she requests the Board to give him or her an opinion in writing on the scope and level of detail of the information required to be included in the report.
(ii) Subject to subparagraph (iii), the Board shall, taking into account the information provided by the person referred to in subparagraph (i), in particular on the specific characteristics of the proposed alteration, including its location and technical capacity, and its likely impact on the environment, give an opinion in writing on the scope and level of detail of the information to be included in an environmental impact assessment report, subject to any prescribed consultations to be carried out by the Board in relation to such opinion.
(iii) The Board shall give the opinion before the submission by the person referred to in subparagraph (i) of the environmental impact assessment report.
(2) Where an opinion referred to in subsection (1) has been provided, the environmental impact assessment report shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects on the environment of the proposed alteration of the terms of the development, taking into account current knowledge and methods of assessment.]
Annotations
Amendments:
F649
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 15, in effect as per reg. 2(1).
Editorial Notes:
E289
The section heading is taken from the amending regulation in the absence of one included in the amendment.
F650[
Application of sections 146A to 146C to railway orders.
146D.— Sections 146A to 146C shall apply to a railway order under the Transport (Railway Infrastructure) Act 2001 (whether made before or after the amendment of that Act by the Planning and Development (Strategic Infrastructure) Act 2006) as they apply to a permission, decision or approval referred to in them with the following modifications:
(a) a reference in those sections to the terms of the development shall be construed as a reference to the terms of the railway works, the subject of the railway order;
(b) a reference in those sections to altering the terms of the development shall be construed as a reference to amending, by order, the railway order with respect to the terms of the railway works, the subject of the railway order; and
(c) a reference in section 146A to submissions or observations made to the Board in relation to the permission or other matter concerned shall be construed as a reference to submissions made to the Minister for Transport or the Board, as the case may be, under the Transport (Railway Infrastructure) Act 2001 in relation to the railway order.]
Annotations
Amendments:
F650
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 30, S.I. No. 684 of 2006.
PART VII
Disclosure of Interests, etc.
Annotations
Modifications (not altering text):
C124
Application of Part VII restricted (1.01.2003) by Local Government Act 2001 (37/2001), s. 167(5)(a), S.I. No. 218 of 2002, subject to transitional provision in subs. (5)(b).
Application (Part 15).
167.— …
(5) (a) Part VII of the Act of 2000 shall cease to apply to—
(i) a member of a planning authority,
(ii) a member of a committee of a planning authority, and
(iii) an officer of a planning authority.
(b) A declaration given in accordance with section 147 of the Act of 2000 by—
(i) a member of a planning authority, or
(ii) an officer of a planning authority,
shall continue to apply and have effect until replaced by a declaration furnished to the ethics registrar under section 171 of this Act.
Declaration by members, etc. of certain interests.
147.—(1) It shall be the duty of a person to whom this section applies to give to the relevant body a declaration in the prescribed form, signed by him or her and containing particulars of every interest of his or hers which is an interest to which this section applies and for so long as he or she continues to be a person to whom this section applies it shall be his or her duty where there is a change regarding an interest particulars of which are contained in the declaration or where he or she acquires any other interest to which this section applies, to give to the relevant body a fresh declaration.
(2) A declaration under this section shall be given at least once a year.
(3) (a) This section applies to the following persons:
(i) a member of the Board;
(ii) a member of a planning authority;
(iii) an employee of the Board or any other person—
(I) whose services are availed of by the Board, and
(II) who is of a class, description or grade prescribed for the purposes of this section;
(iv) an officer of a planning authority who is the holder of an office which is of a class, description or grade so prescribed.
(b) This section applies to the following interests:
(i) any estate or interest which a person to whom this section applies has in any land, but excluding any interest in land consisting of any private home within the meaning of paragraph 1(4) of the Second Schedule to the Ethics in Public Office Act, 1995;
(ii) any business of dealing in or developing land in which such a person is engaged or employed and any such business carried on by a company or other body of which he or she, or any nominee of his or hers, is a member;
(iii) any profession, business or occupation in which such a person is engaged, whether on his or her own behalf or otherwise, and which relates to dealing in or developing land.
(4) A person to whom this section applies and who has an interest to which this section applies shall be regarded as complying with the requirements of subsection (1) if he or she gives to the relevant body a declaration referred to in that subsection:
(a) within the period of twenty-eight days beginning on the day on which he or she becomes such a person,
(b) in case there is a change regarding an interest particulars of which are contained in a declaration already given by the person or where the person acquires any other interest to which this section applies, on the day on which the change occurs or the other such interest is acquired.
(5) For the purposes of this section, a person to whom this section applies shall be regarded as having an estate or interest in land if he or she, or any nominee of his or hers, is a member of a company or other body which has an estate or interest in the land.
(6) For the purposes of this section, a person shall not be regarded as having an interest to which this section applies, if the interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to any matter arising or coming before the Board or authority, as may be appropriate, or in performing any function in relation to any such matter.
(7) Where a person to whom this section applies has an interest to which this section applies by reason only of the beneficial ownership of shares in a company or other body by him or her or by his or her nominee and the total value of those shares does not exceed the lesser of—
(a) F651[€13,000], or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body or, where that capital is issued in shares of more than one class, the issued share capital of the class or classes of shares in which he or she has an interest,
subsection (1) shall not have effect in relation to that interest.
(8) The Board and each planning authority shall for the purposes of this section keep a register (“the register of interests”) and shall enter therein the particulars contained in declarations given to the Board or the authority, as the case may be, pursuant to this section.
(9) The register of interests shall be kept at the offices of the Board or the planning authority, as the case may be, and shall be available for public inspection during office hours.
(10) Where a person ceases to be a person to whom this section applies, any particulars entered in the register of interests as a result of a declaration being given by the person to the relevant body pursuant to this section shall be removed, as soon as may be after the expiration of the period of five years beginning on the day on which the person ceases to be such a person, from the register of interests by that body.
(11) Subject to subsection (12), a person who fails to comply with subsections (1) and (2) or who, when purporting to comply with the requirements of subsection (1), gives particulars which are false or which to his or her knowledge are misleading in a material respect, shall be guilty of an offence.
(12) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the relevant time he or she believed, in good faith and upon reasonable grounds, that—
(a) the relevant particulars were true,
(b) there was no matter as regards which he or she was then required to make a declaration under subsection (1), or
(c) that the matter in relation to which the offence is alleged was not one as regards which he or she was so required to make such a declaration.
(13) (a) For the purposes of this section and sections 148 and 149—
(i) a F652[chief executive] shall be deemed to be an officer of every planning authority for which he or she is F652[chief executive],
F652[(ii) the deputy chief executive (within the meaning of section 148, inserted by section 54 of the Local Government Reform Act 2014, of the Local Government Act 2001) of a local authority shall be deemed to be an officer of the planning authority concerned, and]
(iii) an officer of a planning authority who, by virtue of an arrangement or agreement entered into under any enactment, is performing functions under another planning authority, shall be deemed to be also an officer of the other authority.
(b) In this section “relevant body” means—
(i) in case a person to whom this section applies is either a member or employee of the Board, or other person whose services are availed of by the Board, the Board, and
(ii) in case such a person is either a member or officer of a planning authority, the authority.
Annotations
Amendments:
F651
Substituted (25.06.2001) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and (4) and schs. 3 ref. no. 6 and 4 item 10, commenced on enactment.
F652
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(2) and sch. 2 items 59, 60, S.I. No. 436 of 2018.
Modifications (not altering text):
E290
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Requirements affecting members, etc. who have certain beneficial interests.
148.—(1) Where a member of the Board has a pecuniary or other beneficial interest in, or which is material to, any appeal, contribution, question, determination or dispute which falls to be decided or determined by the Board under any enactment, he or she shall comply with the following requirements:
(a) he or she shall disclose to the Board the nature of his or her interest;
(b) he or she shall take no part in the discussion or consideration of the matter;
(c) he or she shall not vote or otherwise act as a member of the Board in relation to the matter;
(d) he or she shall neither influence nor seek to influence a decision of the Board as regards the matter.
(2) Where, at a meeting of a planning authority or of any committee of a planning authority, a resolution, motion, question or other matter is proposed or otherwise arises either pursuant to, or as regards the performance by the authority of a function under this Act or in relation to the acquisition or disposal by the authority of land under or for the purposes of this Act or any other enactment, a member of the authority or committee present at the meeting shall, if he or she has a pecuniary or other beneficial interest in, or which is material to, the matter—
(a) at the meeting, and before discussion or consideration of the matter commences, disclose the nature of his or her interest, and
(b) withdraw from the meeting for so long as the matter is being discussed or considered,
and accordingly, he or she shall take no part in the discussion or consideration of the matter and shall refrain from voting in relation to it.
(3) A member of a planning authority or of any committee of a planning authority who has a pecuniary or other beneficial interest in, or which is material to, a matter arising either pursuant to, or as regards the performance by the authority of a function under this Act, or in relation to the acquisition or disposal by the authority of land under or for the purposes of this Act or any other enactment, shall neither influence nor seek to influence a decision of the authority as regards the matter.
(4) Where the F653[chief executive] of a planning authority has a pecuniary or other beneficial interest in, or which is material to, any matter which arises or comes before the authority either pursuant to, or as regards the performance by the authority of a function under this Act, or in relation to the acquisition or disposal by the authority of land under or for the purposes of this Act or any other enactment, he or she shall, as soon as may be, disclose to the members of the planning authority the nature of his or her interest.
(5) (a) Where an employee of the Board, a consultant or adviser engaged by the Board, or any other person whose services are availed of by the Board has a pecuniary or other beneficial interest in, or which is material to, any appeal, contribution, question or dispute which falls to be decided or determined by the Board, he or she shall comply with the following requirements:
(i) he or she shall neither influence nor seek to influence a decision of the Board as regards the matter;
(ii) in case, as such employee, consultant, adviser or other person, he or she is concerned with the matter, he or she shall disclose to the Board the nature of his or her interest and comply with any directions the Board may give him or her in relation to the matter.
(b) Where an officer of a planning authority, not being the F653[chief executive], has a pecuniary or other beneficial interest in, or which is material to, any matter which arises or comes before the authority, either pursuant to, or as regards the performance by the authority of a function under this Act, or in relation to the acquisition or disposal of land by the authority under or for the purposes of this Act or any other enactment, he or she shall comply with the following requirements:
(i) he or she shall neither influence nor seek to influence a decision of the authority as regards the matter; and
(ii) in case, as such officer, he or she is concerned with the matter, he or she shall disclose to the manager of the authority the nature of his or her interest and comply with any directions the F653[chief executive] may give him or her in relation to the matter.
(6) For the purposes of this section but without prejudice to the generality of subsections (1) to (5), a person shall be regarded as having a beneficial interest if—
(a) he or she or his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], or any nominee of his or her or of his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], is a member of a company or any other body which has a beneficial interest in, or which is material to, a resolution, motion, question or other matter referred to in subsections (1) to (5),
(b) he or she or his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] is in partnership with or is in the employment of a person who has a beneficial interest in, or which is material to, such a resolution, motion, question or other matter,
(c) he or she or his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a resolution, motion, question or other matter relates, or
(d) his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] has a beneficial interest in, or which is material to, such a resolution, motion, question or other matter.
(7) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or which is material to, any resolution, motion, question or other matter by reason only of an interest of his or her or of any company or of any other body or person referred to in subsection (6) which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.
(8) Where a person has a beneficial interest referred to in subsection (1), (2), (3), (4) or (5) by reason only of the beneficial ownership of shares in a company or other body by him or her or by his or her spouse F654[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] and the total value of those shares does not exceed the lesser of—
(a) F655[€13,000], or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body or, where that capital is issued in shares of more than one class, the issued share capital of the class of shares in which he or she has an interest,
none of those subsections shall have effect in relation to that beneficial interest.
(9) Where at a meeting referred to in subsection (2) a disclosure is made under that subsection, particulars of the disclosure and of any subsequent withdrawal from the meeting pursuant to that subsection shall be recorded in the minutes of the meeting.
(10) Subject to subsection (11), a person who contravenes or fails to comply with a requirement of this section shall be guilty of an offence.
(11) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the time of the alleged offence he or she did not know and had no reason to believe that a matter in which, or in relation to which, he or she had a beneficial interest had arisen or had come before, or was being considered by, the Board or the relevant planning authority or committee, as may be appropriate, or that the beneficial interest to which the alleged offence relates was one in relation to which a requirement of this section applied.
Annotations
Amendments:
F653
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. nos. 61, 62, S.I. No. 436 of 2018.
F654
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 97 and sch. part 1, item 26, S.I. No. 648 of 2010.
F655
Substituted (25.06.2001) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and (4) and schs. 3 ref. no. 6 and 4 item 10, commenced on enactment.
Supplemental provisions relating to sections 147 and 148.
149.—(1) Proceedings for an offence under section 147 or 148 shall not be instituted except by or with the consent of the Director of Public Prosecutions.
(2) Where a person is convicted of an offence under section 147 or 148—
(a) the person shall be disqualified from being a member of the Board,
(b) in case the person is a member of the Board, he or she shall on conviction accordingly cease to be a member of the Board,
(c) in case the person is a member of a planning authority or a member of any committee of a planning authority, he or she shall on conviction cease to be a member of the authority or the committee, as may be appropriate,
(d) in case the person is a member of both a planning authority and any one or more such committees, he or she shall on conviction cease to be a member of both the authority and every such committee, and
(e) in case the person by virtue of this subsection ceases to be a member of a planning authority or any such committee, he or she shall be disqualified for being a member of the authority or committee during the period which, but for the cessation of his or her membership of the authority or committee under this section, would be the remainder of his or her term.
(3) A disqualification under this section shall take effect on the expiry of the ordinary time for appeal from the conviction concerned or if an appeal is brought within that time, upon the final disposal of that appeal.
(4) In case a person contravenes or fails to comply with a requirement of section 147, 148 or 150, or acts as a member of the Board, a planning authority or committee of a planning authority while disqualified for membership by virtue of this section, the fact of the contravention or failure or of his or her so acting, as the case may be, shall not invalidate any act or proceeding of the Board, authority or committee.
(5) Where any body which is a company within the meaning of section 155 of the Companies Act, 1963, is deemed under that section to be a subsidiary of another or to be another such company’s holding company, a person who is a member of the first-mentioned such company shall, for the purposes of sections 147 and 148 be deemed also to be a member of the other company.
Codes of conduct.
150.—(1) (a) Every planning authority, by resolution, and the Board shall adopt a code of conduct for dealing with conflicts of interest and promoting public confidence in the integrity of the conduct of its business which must be followed by those persons referred to in subsection (3).
(b) A code of conduct under this section shall be adopted within one year of the commencement of this section.
(2) A code of conduct shall consist of a written statement setting out the planning authority’s or the Board’s policy on at least the following matters:
(a) disclosure of interests and relationships where the interests and relationships are of relevance to the work of the authority or the Board, as appropriate;
(b) membership of other organisations, associations and bodies, professional or otherwise;
(c) membership of, or other financial interests in, companies, partnerships or other bodies;
(d) undertaking work, not being work on behalf of the authority or the Board, as the case may be, both during and after any period of employment with the authority or the Board, whether as a consultant, adviser or otherwise;
(e) acceptance of gifts, sponsorship, considerations or favours;
(f) disclosure of information concerning matters pertaining to the work of the authority or the Board, as appropriate;
(g) following of proper procedure in relation to the functions of the authority and the Board including the procedures for—
(i) (I) the review, making and variation of development plans,
(II) the review, making and amendment of local area plans,
(III) the processing of planning applications and appeals, and
(IV) the granting of permission which would materially contravene the development plan, including the use of resolutions referred to in section 34(6)(c),
and
(ii) the disclosure by members and employees of the authority or of the Board of any representations made to such members or employees whether in writing or otherwise in relation to those matters.
(3) This section shall apply to—
(a) a member of the Board,
(b) a member of a planning authority,
(c) an employee of the Board or any other person—
(i) whose services are availed of by the Board, and
(ii) who is of a class, description or grade prescribed for the purposes of this section,
and
(d) an officer of a planning authority who is the holder of an office which is of a class, description or grade so prescribed.
(4) (a) It shall be a condition of appointment of persons listed at subsection (3)(a) that they shall comply with the code of conduct.
(b) It shall be a condition of taking up and holding office by persons listed at subsection (3)(b) that they shall comply with the code of conduct.
(c) It shall be a condition of employment of persons listed at subsection (3)(c) and (d) that they shall comply with the code of conduct.
(5) A planning authority or the Board may at any time review a code of conduct adopted under this section and may—
(a) amend the code of conduct, or
(b) adopt a new code of conduct.
Annotations
Editorial Notes:
E291
Adoption by a planning authority of a code of conduct for dealing with conflicts of interest and promoting public confidence in the integrity of the conduct of its business is a reserved function of local authorities as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 3 item 75 as inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 41(4) and sch. 3, S.I. No. 214 of 2014.
E292
Provision for continuance of code under section made (21.05.2004) by Local Government Act 2001 (37/2001), s. 169(6), S.I. No. 217 of 2004.
E293
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Cases
Patrick Keane and Patrick Naughton v An Bord Pleanála and the Commissioners of Irish Lights
and Clare County Council, Paul Considine, Valerie Considine and the Minister for the Marine (notice parties)
1997 No. 29
Supreme Court
22 April 1998
[1998] 2 I.L.R.M. 241
(Nem. Diss.) (Hamilton CJ, Barrington and Keane JJ)
KEANE J
(Hamilton CJ and Barrington J concurring) delivered his judgment on 22 April 1998 saying:
Introduction
This is the latest, and it is to be hoped the final instalment in a protracted legal battle arising out of the proposal to erect a radio mast designed to be an aid to navigation at Feeard, County Clare.
The factual background can be briefly summarised at this point. The second named respondents (hereafter ‘the commissioners’) are a statutory body established by legislation in the last century to exercise control over lighthouses, buoys or beacons. Under the Merchant Shipping Act 1894, they were empowered to erect lighthouses, buoys or beacons and in the year 1994 they sought to avail of that power to erect the radio mast in question. The proposed mast was one of a series forming part of what was known as the ‘Loran C’ system established as an aid to navigation in the North Atlantic Ocean and North West Europe by a number of countries, including Ireland.
Although the development was not one for which planning permission was required, the commissioners (who, in the context of the development, were acting at all times as agents for the fourth named notice party (hereafter ‘the minister’) applied for such permission. The application was refused by the first named notice party (hereafter ‘the county council) and the commissioners thereupon appealed to the first named respondent, An Bord Pleanála. Following an oral hearing, the latter granted the permission sought subject to a number of conditions.
The applicants then made two separate applications for leave to issue pro *245 ceedings by way of judicial review. The first, which was granted by this Court on appeal, sought to quash the decision of An Bord Pleanála to grant planning permission. The second sought a declaration that the erection of the radio mast was ultra vires the powers of the commissioners and/or the minister. That contention succeeded in the High Court and the decision of Murphy J was upheld by a majority of this Court (see Keane v. An Bord Pleanála [1997] 1 IR 184).
The application for judicial review in respect of the decision of An Bord Pleanála came before Carroll J in the High Court and, in a reserved judgment delivered on 6 December 1996, she rejected the applicants’ claim. The decision of this Court that neither the commissioner nor the minister had any power to carry out the development in question is not referred to in the judgment, presumably because, apart from any other considerations, counsel for the applicants took the view that it could not be relied on, not being one of the grounds on which the court had granted leave to issue the judicial review proceedings.
The ultra vires issue
The applicants appealed from the decision of Carroll J to this Court pursuant to leave granted by her under the relevant legislation. In the meantime, legislation has been enacted to deal with the lacuna in the commissioners’ powers which had been found to exist in the earlier proceedings. S. 3 of the Merchant Shipping (Commissioners of Irish Lights) Act 1997 provided that:
(1) Subject to subs. (3), the commissioners shall have, and be deemed always to have had, in relation to maritime navigation, power to
(a) operate without limit as to range a radio navigation system,
(b) erect or place any radio navigation system, with all requisite works, roads and appurtenances,
(c) maintain, repair, improve, alter, remove or vary the character of any radio navigation system and
(d) purchase or dispose of any land which may be necessary for the exercise of their powers under this subsection.
(2) The commissioners shall have, and be deemed always to have had, all such incidental, supplemental, ancillary and consequential powers as, in the opinion of the commissioners, are necessary or expedient for the purpose of the exercise by them of the powers aforesaid.
(3) Paragraphs (a) and (b) of subs. (1) of this section shall not apply to the radio navigation system known as Loran C within the meaning of the international agreement concerning the establishment and operation of the Civil Loran C Navigation System in North West Europe and the North Atlantic done at Oslo on 6 August 1992 until such date as the minister may appoint by order, subject to any restrictions or conditions as the minister may specify in the order. *246
(4) Where an order is proposed to be made under subs. (3) of this section, a draft of the order shall be laid before each house of the Oireachtas and the order shall not be made unless a resolution approving of the draft is passed by each such house.
(5) If, because of any or all of its provisions, subs. (1) and (2) of this section would, but for the provisions of this subsection conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.
At the time of the hearing of the appeal in this Court, no order had been made by the minister under subs. (3) above. Although the matter had not been raised in the notice of appeal from the decision in the High Court or in the written submissions lodged on behalf of the applicants, the court invited counsel to make submissions as to the legal consequences of the development being ultra vires until such time as the necessary resolutions were passed under subs. (4) and an order was made by the minister under subs. (3).
On behalf of the applicants, Mr Iarfhlaith O’Neill SC submitted that it was clear from the decision of this Court in Frescati Estates Ltd v. Walker [1975] IR 177 that neither a planning authority nor An Bord Pleanála had any jurisdiction to grant planning permission to an applicant who was incapable in law of carrying out the development. On behalf of the commissioners, Mr Sreenan SC submitted that the decision in that case went no further than saying that an applicant for planning permission must have an estate or interest in the land which was the subject of the proposed development. It was clear from other provisions of the planning code that it might be necessary for an applicant, such as the commissioners, to obtain other consents before proceeding with the authorised development.
In many cases, including the present, a person who has been granted planning permission will be unable to proceed with the development until he has obtained a relevant permission. This may arise either as a matter of public law or private law. For example, a company may apply for permission for the erection of a hotel including bar and restaurant facilities. In terms of planning law, the grant of permission will authorise, not merely the construction of the building, but also its use as a hotel, restaurant and bar. As a matter of public law, however, that use cannot lawfully commence until such time as the necessary licences are obtained under the codes dealing with the licensing of bars and restaurants. Similarly, a fire safety certificate may be required under the Building Control Act 1990 before any development can commence. As a matter of private law, the company may find, after permission has been granted, that the objects in its memorandum do not authorise it to carry on such a business and consequential amendments may have to be effected. Where the land is lease *247 hold, there may be covenants affecting the proposed development which may require the consent of the lessor to be obtained.
The fact that such permissions or consents may be required before the development may lawfully commence does not preclude the planning authority, or An Bord Pleanála, from granting the permission, provided all the relevant requirements of the planning legislation are met. S. 26(11) of the Local Government (Planning and Development) Act 1963 (hereafter ‘the Principal Act’) acknowledges at least by implication that such further permissions under public or private law may be required by providing that:
A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.
The scheme of the legislation is clear. A planning permission does no more than assure the applicant that, quoad the planning legislation, his development will be lawful. The policy of the legislation is to ensure, not merely that harmful development is prevented, but that beneficial development takes place. An applicant who obtains permission but finds that he is unable to proceed with the development, for whatever reason, may dispose of his interest in the land to someone else who may be in a position to proceed with the development, as is made clear by s. 28(5) of the Principal Act which provides, inter alia, that:
Where permission to develop land … is granted under this Part of this Act, then, except as may be otherwise provided by the permission, the grant of permission shall enure for the benefit of the land or structure and of all persons for the time being interested therein ….
The decision in Frescati Estates Ltd v. Walker which was referred to in the arguments, must be understood in the context of its particular facts. The plaintiff had been refused permission for a development which would have involved the demolition of a historic building and had applied to the planning authority for compensation. That body sought to avoid a liability for such compensation by giving an undertaking that they would grant permission for a development of the type contemplated, subject to conditions. The defendant, who was a member of a conservation body objecting to the demolition of the building, applied for outline permission for a development which would have involved the retention of the building. This was done solely as a tactical manoeuvre in the hope that, if such permission was granted by the planning authority (as it was), the plaintiff could be restrained from carrying out another inconsistent development. The plaintiff then instituted proceedings claiming an injunction restraining the defendant from proceeding with her application and directing that it should be withdrawn. Although it was found in the High Court that the defendant had no intention or hope of acquiring any estate of any kind in the property *248 or of developing it, it was also held that the application was lawful since the legislation did not require her to have any estate or interest in the land. A different view was, however, taken in this Court.
In the course of his judgment, Henchy J (with whom the other members of the court agreed) drew attention to the consequences which could flow from a finding that a person with no legal estate or interest in a particular property could obtain a planning permission. Under s. 9 of the Principal Act, the occupier of the property could be required to furnish certain information to the planning authority and would be guilty of a criminal offence if he failed to comply with the relevant notice. Furthermore, s. 83 enabled an authorised person to enter on land ‘for any purpose connected with the [Principal] Act’. In connection with the latter provision, the learned judge added (at p. 189):
If the [Principal] Act had to be read as allowing that degree of intrusion at the behest of any individual who chooses to make a development application in respect of another person’s property, the constitutionality of the statute would be very much in question.
These and other considerations led Henchy J to the following conclusion at p. 190:
To sum up, while the intention of the Act is that persons with no legal interest [such as would be purchasers] may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word ‘applicant’ in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development.
Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question. There will thus be sufficient privity between the applicant [if he is not a person entitled] and the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled.
It may be that the ratio of this decision is to be found in the first paragraph of this passage and that the second paragraph, to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development, should properly be regarded as obiter. One could *249 readily envisage circumstances in which an application could be made by some other person which could not possibly be described as either ‘unnecessary’ or ‘vexatious’. In the context of the present case, however, it is sufficient to say that the principle apparently laid down in Frescati Estates Ltd v. Walker must be strictly confined to cases in which the application is not made by or with the approval of a person who has a legal estate or interest in the relevant property sufficient to enable him to carry out the proposed development. Since this is not such a case, it follows that, having regard to the other considerations to which I have already referred, the fact that the commissioners will be unable to carry out the proposed development until such time as the necessary resolutions have been passed and an order made by the minister is not relevant to the present appeal.
The planning issues
Before considering the issues which arose in the application for judicial review in the High Court and which were the subject of this appeal, the factual background should be set out in a little more detail.
The proposed development was for the construction of a high mast supported by stay-wires, approximately 220 metres high and 1.75 metres wide on a site located on the Loop Head peninsula in South West County Clare. It also included ancillary facilities and a caretaker’s house. The mast would be used as a radio transmitter and, as already noted, would form part of the radio navigation system, known as Loran C, which is used primarily for marine navigation. It was developed primarily for the United States Department of Defence, but has been widely availed of by civilian users in the areas covered by its signals. Loran transmitters are located in many regions of the world: as already noted, the proposed mast, if constructed, will be part of the system serving the North Atlantic and North Western Europe.
The system was formerly funded by the US Coastguard as an aid to US naval operations in Europe, but this funding was due to be withdrawn from 1992 because of a move to a satellite system by the United States. It would appear, however, that the view was taken in a number of European countries, including Ireland, that the Loran system should continue to operate, so as to avoid a total dependence on satellite systems.
While it is important to bear this background in mind when the purely legal issues are being considered, it should be emphasised that neither the High Court nor this court was concerned with the question as to whether the Loran C system was, or might be, obsolescent, a view suggested on behalf of the applicants but rejected on behalf of the commissioners. It is acknowledged by all the parties that at the time An Bord Pleanála made the decision which gave rise to the present proceedings, the policy of the Irish government was to support the maintenance of the Loran C system, not simply because of its intrinsic merits, but *250 also because the view was taken that Ireland was bound to adopt that position in the light of the Oslo agreement concerning the establishment and operation of the Loran C system. It is also not in dispute that the creation and maintenance of such a system, whether Loran C or some other, which makes use of modem radio communications is an important aid to safety in the oceans and seas which surround Ireland.
The decision by An Bord Pleanála to grant permission followed an oral hearing conducted by an inspector appointed by the board, Mr H.W. Van Der Karrip. The applicants who, together with a number of other objectors to the development living in the area, were represented at the hearing by a solicitor, took issue with the proposal on a number of grounds, including its visual impact, the public health implications and the possible effect on property values. In addition, they objected to evidence of the Oslo agreement being presented at the hearing and considered by the inspector.
After the hearing, the inspector furnished a written report to An Bord Pleanála, which was discovered in the course of the present proceedings. The report contains a detailed evaluation of the proposed development and its possible effect on the environment, including the various grounds advanced on behalf of the objectors. The inspector’s recommendation was that permission should be granted subject to a number of conditions.
That recommendation was accepted by An Bord Pleanála which granted permission for the development subject to eight conditions on 4 November 1994. The First Schedule to its decision sets out its reasons as follows:
The proposed development forms a significant element in an internationally agreed network which is considered necessary for marine navigation. It is considered that the development is an important element of the Irish national infrastructure and is in the interests of the common good.
The site selected conforms generally with internationally accepted site selection criteria relating to the proposed facility.
Having regard to the fact that no houses are located within 500 metres of the proposed mast and the levels of electromagnetic fields at the site boundary would be significantly below relevant international guidelines, it is considered that the development complies with the ALARA principle (as low as reasonably acceptable) in terms of public exposure to electromagnetic fields.
Having regard to the location of the proposed development within the Loop Head peninsula, it is considered that visual intrusion into the scenic coastal landscape and the main tourism features of the peninsula would not be significant.
Accordingly, it is considered that, subject to compliance with the conditions set *251 out in the Second Schedule, the proposed development would not be prejudicial to public health and would not seriously detract from the visual amenities of the peninsula or seriously injure residential amenities. The proposed development would, therefore, be consistent with the proper planning and development of the area.
The grounds on which the applicants were given leave to challenge this decision by way of judicial review by this Court were as follows:
(1) In reaching its decision [An Bord Pleanála] took into consideration certain matters which it had no jurisdiction or power to consider when deciding on the instant planning application, namely an international agreement concerning the establishment and operation of the Civil Loran C Navigation System in North West Europe and the North Atlantic made in Oslo on 6 August 1992 together with a resolution of Dáil Éireann approving the terms of the said agreement on 8 October 1992. In taking those agreements into consideration and indeed setting out the reasons for granting the planning permission based on such agreements, An Bord Pleanála exceeded its jurisdiction and power and the granting of such planning permission based on such considerations was and is ultra vires the powers of the respondent and is accordingly null and void.
(2) The documents, data and evidence given to the planning inspector at the oral hearing herein established that the effects of the proposed navigation system which operates by measuring the difference in the time of arrival of pulses from the master station and the secondary stations in a chain of such stations based in France and Norway would operate up to distances of up to 500 miles outside of the jurisdiction not alone of the planning authority — Clare County Council — but also of An Bord Pleanála and the Irish State itself. Despite objections having been taken and made to the introduction of such evidence on the ground that it far exceeded the jurisdiction and power of the local planning authority and of An Bord Pleanála it is evident and apparent that An Bord Pleanála considered these matters as falling properly within the ambit of matters to be considered by the board on the hearing of a planning appeal.
An Bord Pleanála exceeded its jurisdiction in this regard and accordingly acted ultra vires and illegally.
(3) The Commissioners of Irish Lights in making their application for planning permission and subsequent appeal against the refusal of planning permission sought to suggest that An Bord Pleanála had jurisdiction to entertain matters outside the strict confines of the statutes governing planning matters. Accordingly, in the absence of any special statutory provision authorising An Bord Pleanála to consider such other matters outside the ambit or confines of the Planning Act, An Bord Pleanála incorrectly arrived at its decision without restricting itself specifically to matters which are consistent with the proper plan *252 ning and development of the area at Feeard, Cross in the County of Clare and/or other matters which [An Bord Pleanála] is entitled to consider pursuant to the Planning Acts ….
(8)(viii) [An Bord Pleanála] in reaching its decision concerning the grant of planning permission to the Commissioners of Irish Lights for the instant development acted on evidence and considerations and based its decisions on evidence and considerations which were irrelevant to the planning application or appeal and which were not appropriate matters for consideration by [An Bord Pleanála] in reaching its decision in relation to the planning application and appeal by the Commissioners of Irish Lights ….
As elaborated in the High Court and on appeal in this Court, the argument on behalf of the applicants was to the effect that, in general, An Bord Pleanála in making such a decision was confined to considering the proper planning and development of the area of the planning authority. It could only have regard, it was argued, to its effect on areas outside the area of the planning authority concerned to the extent that the development might have an adverse effect on such areas. It was, moreover, strictly confined to questions of ‘planning and development’ and it was not open to it to take into account issues of policy which arose in other contexts, such as methods of ensuring safety at sea. As already noted, those arguments were rejected by the learned High Court judge. She was of the view that, properly construed, the relevant provisions of the planning code did not so confine the planning authority or An Bord Pleanála. She was also of the view that, in exercising its powers, An Bord Pleanála was entitled and obliged to take the common good into consideration and that any other construction of the relevant legislation would run the risk of rendering it unconstitutional.
S. 82(3)(a) of the Principal Act provides that the determination of the High Court of an application for judicial review of this nature is to be final and that no appeal lies from the decision to this Court save with the leave of the High Court which may only be granted where that court certifies that its decision involves ‘a point of law of exceptional public importance’ and that it is desirable in the public interest that such an appeal should be taken. Carroll J granted such leave in this case, the certified point of law being:
Its decision in this matter in so far as it involves the construction of s. 26 of the [Principal Act] and ss. 5 and 24 of the Local Government (Planning and Development) Act 1976 so as to permit and require a planning authority or An Bord Pleanála on appeal therefrom to have regard to the common good, even where the common good relates to or includes matters outside the area of the authority or outside the national jurisdiction.
*253
Submissions of the parties
On behalf of the applicants, Mr O’Neill submitted at the outset that, having regard to the decision of this Court in Scott v. An Bord Pleanála [1995] 1 ILRM 424, this Court, in hearing and determining the appeal, was not confined to the point of law as certified by the learned High Court judge but should hear and determine all the grounds of appeal.
Mr O’Neill submitted that the words of s. 26(1) of the Principal Act restricting the planning authority (and An Bord Pleanála on appeal) to considering ‘the proper planning and development of the area of the authority’ were precise and unambiguous. Matters such as ‘the common good’, the policy of the Irish government in favouring the establishment of the Loran C system and the Oslo agreement did not relate to the proper planning and development of the functional area of Clare County Council and hence should not have been taken into account by An Bord Pleanála. In support of his submission that the words of the section should be construed in their ordinary natural sense where they are precise and unambiguous, he referred to the decision of this Court in Howard v. Commissioners of Public Works [1994] 1 IR 101; [1993] ILRM 665. He also urged that a restrictive approach had been adopted by this Court in State (Fitzgerald) v. An Bord Pleanála [1985] ILRM 117; P. & F. Sharpe Ltd v. Dublin City and County Manager [1989] IR 701; [1989] ILRM 565 and Flanagan v. Galway City and County Manager [1990] 2 IR 66.
Mr O’Neill pointed out that further guidance as to what matters might permissibly be taken into account was to be found in the wording of s. 26(1) itself, which requires An Bord Pleanála to have regard to the matters set out in subs. (2) which could be the subject matter of conditions attached to a permission.
Mr O’Neill said it that was clear from the reference in the long title of the Principal Act to the ‘proper planning and development of cities, towns and other areas, whether urban or rural’ that the Act was designed to operate on a local basis. He said that this was in contrast to s. 70(2) of the English Town and Country Planning Act 1990 which envisaged a much broader range of materials as being properly taken into account and referred to the speech of Lord Scarman in Great Portland Estates plc v. Westminster City Council [1985] AC 661; [1984] 3 All ER 744.
Mr O’Neill said that, in consequence of the decision of this Court in Howard v. Commissioners of Public Works [1994] 1 IR 101; [1993] ILRM 665 that state authorities were obliged to apply for permission under the Principal Act, it could well be that the provisions of s. 26 could be regarded as unduly restrictive. That, however, was a matter for the Oireachtas to deal with and did not entitle the courts to confer on planning authorities or An Bord Pleanála a wider jurisdiction than that which could be inferred from the terms of the section itself.
As to the amendments subsequently effected to s. 26 of the Principal Act which enabled the planning authority or An Bord Pleanála to have regard to the *254 ‘probable effect’ which a particular decision by them would have on any ‘place’ or ‘area’ outside the ‘area’ of the relevant planning authority, Mr O’Neill submitted that the learned High Court judge was wrong in law in adopting an expansive construction of these provisions: if they were to be construed as permitting consideration of all the effects of a proposed development outside the particular area, it would render nugatory the restrictions imposed on the authorities by s.26 of the Principal Act. He submitted that this made it clear that the only such effects which the planning authority or An Bord Pleanála could have regard to were deleterious effects. He also submitted that the word ‘area’ as used in the sections was coterminous with the functional area of another planning authority.
Mr O’Neill submitted that the learned High Court judge was also wrong in law in the conclusion she drew from s.5 of the Local Government (Planning and Development) Act 1976 requiring An Bord Pleanála to keep itself informed as to the policies and objectives of the persons and bodies mentioned in the section. Contrary to what she had held, it did no more than oblige An Bord Pleanála to keep itself so informed and did not empower it to disregard the restriction imposed by s.26(1) of the Principal Act, confining it to a consideration of the proper planning and development of the area of the planning authority in question.
Mr O’Neill further submitted that the ‘common good’ referred to in the long title of the Principal Act was envisaged by the Oireachtas as being attained by the operations of the provisions, properly construed, of the Act itself. It was not to be treated as a separate topic for consideration which of itself extended the range of material which An Bord Pleanála, on a proper construction of the relevant sections, could legitimately consider.
Finally, Mr O’Neill urged that what he described as the ‘very high level of insulation against legal challenge’ which An Bord Pleanála and the planning authorities enjoyed, following the decision of this Court in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39; [1992] ILRM 237, and the fact that An Bord Pleanála was not politically accountable in any way rendered it all the more essential that it should confine its decisions to matters of planning and development and should not ‘stray into’ other areas of national policy.
On behalf of Clare County Council, Mr John Crosbie adopted the submissions of Mr O’Neill. In addition, he drew attention to the provisions of s. 13(1) of the Local Government (Planning and Development) Act 1992 which provided that An Bord Pleanála could take into account matters other than those raised by the parties or any person who has made submissions or observations to the board:
If the matters are matters to which, by virtue of s. 26(5) of the Principal Act, the board may have regard.
*255
He submitted that this made it clear beyond doubt that both the planning authority and An Bord Pleanála could not take into account any matters other than those set out in s. 26(5) of the Principal Act.
Mr Crosbie also relied on s. 7(1) of the Local Government (Planning and Development) Act 1982 which empowers the Minister for the Environment to issue policy directives as to planning and development, urging that no such directive had been issued relating to the matters under consideration in this case.
On behalf of An Bord Pleanála, Mr Michael Collins SC submitted that s. 5 of the 1976 Act imposed a mandatory obligation on his client to have regard to the ‘policies and objectives’ of any ‘public authority’ whose functions had, or might have, a bearing on matters of planning and development. He said that it followed from this that it was obliged to take into consideration the Oslo agreement and the resolution of the Dail when determining the commissioners’ application, citing in support the decision of this Court in the State (CIE) v. An Bord Pleanála Supreme Court 1984 No. 72, 12 December 1984. Similarly, s. 7 of the Local Government Act 1991 required local authorities to have regard to the policies and objectives of the government or any minister. Since the Oslo agreement and the resolution of the Dail undoubtedly reflected government policy, the planning authority was obliged to have regard to both when considering the application of the commissioners for permission and it followed that his client was equally obliged to take them into account in considering the appeal. To construe s. 7 otherwise, would be to require the planning authority and his client to apply different criteria in assessing the same application. He cited in support the decision of the High Court in Glencar Explorations plc. v. Mayo County Council [1993] 2 IR 137.
Mr Collins further submitted that the High Court judge was correct in point of law in taking into account the common good. The limitations imposed on the exercise of rights of private property by the legislation could only be justified pursuant to Article 43.2.2° by reference to ‘the exigencies of the common good’. Having regard to the need to give a constitutional construction to the legislation, if that is possible, it followed, he said, that the board was not only entitled, but obliged, under statute, and by implication at least under the Constitution to take account of the common good in deciding what was ‘proper’ planning and development. He cited in support the observations of Kenny J in Central Dublin Development Association v. Attorney General (1975) 109 ITLR 69 and East Donegal Co-Operative Livestock Marts Ltd v. Attorney General [1970] IR 317.
Mr Collins said that it followed from these considerations that the question as to whether the proposed development was in the interests of the common good was a matter peculiarly within the jurisdiction of his client and its decision could not be set aside by the judicial review procedure.
As to the submission that An Bord Pleanála was confined by the terms of *256 the legislation to considering only the deleterious effects on any area outside the area of the relevant planning authority and could not have regard to any beneficial effects on such areas, Mr Collins submitted that this was a strained and unjustified interpretation of the relevant provisions. He urged that planning decisions of necessity involved balancing competing considerations, both positive and negative, and that what might be considered deleterious from one point of view might be regarded as advantageous from another.
Mr Collins submitted that, far from pointing to a restrictive interpretation, the use of the expressions ‘any place’ and ‘any area’ in the legislation indicated an intention on the part of the Oireachtas that both the planning authority and his client should have regard, where appropriate, to the consequences of a proposed development throughout the jurisdiction of the State, including its territorial waters and (in the present case) beyond. He urged that An Bord Pleanála, in considering what was ‘proper’ planning and development, had to have regard to the consequences of a development, not only on the physical environment, but also on people. In that context, the citizens of the State who might be affected by such decisions should not be excluded from the consideration of the planning authority or An Bord Pleanála because, for example, they happened to be sailors or passengers on vessels outside the territorial limits of the State. He cited in support the observations of Murphy J giving judgment in the High Court on the application for leave to issue judicial review proceedings (20 June 1995).
On behalf of the commissioners, Mr Sreenan adopted the arguments of Mr Collins. In addition, he urged that, while it was true that the benefits of this system would be experienced up to 500 miles off the Irish coast, they would equally be available to vessels navigating in the territorial waters off the County Clare coast.
Mr Sreenan also urged that there was ample evidence before An Bord Pleanála on which that body was entitled to reach the conclusion that the benefits to the functional area of the planning authority outweighed any detriment which might result from the development. It was established that the system would reduce the risk of oil tanker disasters either by collisions at sea or vessels running aground. There would be a direct gain to every coastal county by the provision of a reliable and accurate navigational facility close to shore, which would encourage the use of ports. There was also evidence that the degree of accuracy for purposes of navigation provided by Loran C would be a significant advantage to the fishing industry which could result in the promotion of developments on the shoreline.
On behalf of the minister, Mr Aston SC adopted the submissions of Mr Collins and Mr. Sreenan. In addition, he referred to the judgments of this Court in Dreher v. Irish Land Commission [1984] ILRM 94 and O’Callaghan v. Commissioner of Public Works [1985] ILRM 391 as illustrating the importance of *257 construing the planning code so as to ensure that any limitations on property rights arising under the code were justified having regard to the requirements of the common good. He further submitted that the common good was clearly capable of encompassing international obligations undertaken by the State in the public interest and submitted that this was supported by the reference in the preamble to the Constitution to the establishment of concord with other nations.
The applicable law
The long title of the Principal Act describes it as:
An Act to make provision, in the interests of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural (including the preservation and improvement of the amenities thereof) ….
S. 26 provides that:
(1) where
(a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and,
(b) any requirements relating to the application of or made under such regulations are complied with,
the authority may decide to grant the permission or approval subject to or without conditions or to refuse it, and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities there), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area, and the matters referred to in subs. (2) of this section.
Subs. (5)(b) provides that:
Subject to the following provisions of this subsection, where an appeal is brought from a decision of a planning authority and is not withdrawn, [An Bord Pleanála] shall determine the application as if it has been made to [An Bord Pleanála] in the first instance and the decision of [An Bord Pleanála] shall operate to annul the decision of the planning authority as from the time it was given; and the provisions of subs. (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by [An Bord Pleanála] on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority.
S. 24 of the Local Government (Planning and Development) Act 1976 (hereafter ‘the 1976 Act’) provides: *258
(1) Notwithstanding anything contained in the Principal Act, a planning authority in considering:
(a) an application for permission under s. 26 or 27 of that Act shall, where they consider it appropriate, have regard to either or both of the following, namely,
(i) the probable effect which a particular decision by them on the matter would have on any place which is not within or on any area which is outside their area; and,
(ii) any other considerations relating to development outside their area.
(2) Notwithstanding anything contained in the Principal Act, (An Bord Pleanála) in considering an appeal brought under ss. 26, 27, 30, 33, 36 and 37 of that Act, shall, where it considers it appropriate have regard to either or both of the following, namely,
(a) the probable effect which a particular decision by it on the matter would have on any place which is not within, or in any area which is outside, the area of the relevant planning authority; and,
(b) any other consideration relating to development outside the area of that authority.
The latter provision was repealed and re-enacted in a slightly different form by s. 3 of the Local Government (Planning and Development) Act 1992 (hereafter ‘the 1992 Act’) and inserted as s. 26(5)(c) of the Principal Act as follows:
(c) Notwithstanding any other provision of this section, [An Bord Pleanála] in determining an appeal under this subsection, shall, where it considers it appropriate, have regard to either or both of the following namely:
(i) the probable effect which a particular decision by it on the matter would have on any place or area which is outside the area of the relevant planning authority and,
(ii) any other consideration relating to development outside the area of that authority.
S. 5 of the 1976 Act provides:
(1) [An Bord Pleanála] shall, so far as may in the opinion of the board be necessary for the performance of its functions, keep itself informed of the policies and objectives for the time being of the Minister for the Environment, planning authority and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and development [including the preservation and development of amenties] of cities, towns or other areas whether urban or rural.
(2) In this section, public authority means any Minister of State not being the Minister [for the Environment], the Commissioners of Public Works in Ire *259 land, the Land Commission, a harbour authority within the meaning of s. 2 of the Harbours Act 1946 and any other body established by or under statute which is for the time being declared by regulations made by the minister to be a public authority for the purposes of this section.
S. 7 of the Local Government Act 1991 (hereafter ‘the 1991 Act’) provides:
(1) Subject to subs. (2) a local authority in performing the functions conferred on it by or under this or any other enactment shall have regard to ….
(d) the need for consultation with other local authorities and public authorities in appropriate cases,
(e) policies and objectives of the government or any minister of the government in so far as they may affect or relate to its functions.
(2) A local authority shall perform those functions which it is required by law to perform and this section shall not be construed as affecting any such requirement.
S. 7 of the 1992 Act provides that:
(1) The minister shall from time to time issue such general directives as to policy in relation to planning and development as he considers necessary.
(2) A planning authority and [An Bord Pleanála] shall in performing its functions have regard to any directive under this section.
S. 13(1) of the 1992 Act provides that:
[An Bord Pleanála] in determining an appeal may take into account matters other than those raised by the parties or by any person who has made submissions or observations to the board in relation to the appeal if the matter are matters to which, by virtue of s. 26(5) of the Principal Act, the board may have regard.
Conclusions
It is clear from the terms of s.26(5)(c) of the Principal Act as inserted by s.3 of the 1992 Act, which replaced in less cumbersome form a similar enactment in the 1976 Act, that An Bord Pleanála was required, where it considered it appropriate, to have regard to the ‘probable effect’ which its decision on an appeal would have on any ‘place’ or ‘area’ which is ‘outside the area of the relevant planning authority’.
The first question that arises is as to whether, as contended on behalf of the applicants and the county council, they may only have regard to those effects where they are ‘deleterious’. I agree with the view of the trial judge — which *260 was also the view expressed by Murphy J on the application for leave — that there is no reason why the section should be construed in that manner.
No doubt the legislature contemplated the possibility that, for example, the fumes from a chemical factory would not respect the planning authority boundary and that it was entirely proper that the actual extent of possible pollution should be one of the factors taken into account. But in the case of what might be regarded as a community facility, such as a hospital, a school or a church, there would seem no reason why the planning authority or An Bord Pleanála should be obliged to have regard to an artificially defined catchment area in assessing the possible benefits of the development, which manifestly would have to be taken into account in any proper assessment of planning and development considerations. The same indeed could be said of purely commercial developments, such as shopping centres or leisure facilities: in assessing the planning gain to the area of the planning authority and weighing it against the detrimental effects of the development, such as traffic, it was clearly intended that the planning authority or An Bord Pleanála should not be artificially confined to a catchment area defined by the local authority boundaries.
The second question that arises is as to whether as submitted by Mr O’Neill and Mr Crosbie, the word ‘area’, as used in the relevant sections, is co-extensive with the functional area of another planning authority. I am satisfied that this is not how the provisions should be construed, having regard to the actual wording used and the scheme of the legislation.
The draftsman of these sections — and I think these considerations apply to both s. 24 of the 1976 Act and s. 3 of the 1992 Act — has deliberately chosen to use relatively wide ranging language in permitting planning authorities or An Bord Pleanála to have regard to the effect of their decisions beyond the boundaries of the functional area of the planning authority concerned.
It is unnecessary to have recourse to dictionary definitions in this context. The word ‘area’ as used in ordinary, everyday language can have a wide range of connotations: it can be used of a continent (‘the European area’) as of a village. As for the word ‘place’, given the relatively wide parameters which the word ‘area’ would suggest, I think that it must have been used with a more confined location in view. Thus, an individual house could clearly constitute a ‘place’ for the purposes of the sections, although the word ‘area’ might not be an apposite description. It follows that the ‘area’ or ‘place’ referred to in the section is not co-extensive, as urged, with the area of another planning authority: it may encompass areas larger or smaller, including, where appropriate, the entire territory of the State and, it may be, having regard to the breadth of the language used, ‘areas’ or ‘places’ outside the territorial limits of the State.
I accept as correct the submission on behalf of An Bord Pleanála that, in considering what is ‘proper’ planning and development, it is not confined to the consequences of the development on the physical environment, but is also enti *261 tled to take into account its impact on people. Thus, citizens who may be outside the territorial limits, such as sailors, fishermen or passengers on vessels, may be taken into account, if a particular development in the functional area of a planning authority will have consequences for them, whether deleterious or beneficial, which should properly be taken into account when considering ‘proper’ planning and development.
This, in any event, is what the legislative scheme established by the Principal Act and the subsequent legislation would seem to require. Any other construction of the section would preclude a planning authority or An Bord Pleanála from taking into account the possible pollution of the territorial waters adjoining the area of a particular planning authority, since the coastal planning authorities’ boundaries do not extend further than the high water mark on the foreshore: see Brown v. Donegal County Council [1980] IR 132.
The next question that arises is as to whether An Bord Pleanála was entitled to take into account the policy of the Irish government in favouring the establishment of the Loran C system and the Oslo resolution and, more generally, ‘the common good’ referred to in the long title of the Principal Act.
The terms of s. 5 of the 1976 Act unarguably require An Bord Pleanála to keep itself informed on the ‘policies and objectives’ of the minister and the commissioners. That requirement would, however, be entirely meaningless if it was not also entitled, and indeed obliged, to take those policies and objectives into account in discharging its own statutory functions. This Court, indeed, in State (CIE) v. An Bord Pleanála Supreme Court 1984 No. 72, 12 December 1984, quashed a decision of An Bord Pleanála to grant a planning permission which would have materially affected a particular project of CIE, it having taken the view, wrongly as the court found, that this was not a relevant factor in deciding whether permission should be granted. Similarly the planning authority — and, by implication, An Bord Pleanála — are required under s. 7(1) of the 1991 Act to have regard to ‘policies and objectives’ of the government and any minister of the government.
The submissions on behalf of the applicants are based on a misconception: it is assumed that, because An Bord Pleanála correctly takes the view that it must have regard to the policies and objectives of the Minister of the Marine, and his agents, the commissioners, it is in some sense becoming involved itself in making decisions in areas outside the planning and development field which is its statutory remit. But that is clearly not the case. The policies and objectives are determined by the other public authorities concerned. In this case, they include, not merely the minister and the commissioners, but also, having regard to the principle of collective responsibility, the government. The policy decisions taken by these bodies also reflect decisions taken at an international level by other governments with whom this State is co-operating in the provision of what is deemed to be an appropriate system of aid to marine navigation based *262 on radio communications. An Bord Pleanála has not been involved in any way in the formulation of that policy. It is, however, undoubtedly one of the factors which it must take into account in determining whether, having regard to considerations of proper planning and development, permission should be granted.
It is clear from the reasons specified by An Bord Pleanála for its decision that it took that policy into account, as it was not only entitled, but obliged, to do: it is also evident from them that it gave consideration to the objections urged by the applicants, i.e. that the development would be visually intrusive to an unacceptable degree, would have adverse effects on the health of people in the vicinity and would reduce the value of property in the area. As was emphasised by this Court in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39; [1992] ILRM 237, the weighing up of factors such as these is a matter which has been entrusted by the Oireachtas to planning authorities and An Bord Pleanála and their decisions are reviewable by the courts only in the circumstances defined in the judgment of Finlay CJ in that case and which are not present here.
The learned High Court judge was also of the view that An Bord Pleanála was entitled to take into account ‘the common good’ in arriving at its decision and that to construe the legislation otherwise would create constitutional difficulties. I agree with that approach. It must be presumed that, when the Oireachtas referred in the long title of the Principal Act to ‘the common good’ they were conscious of the wide-ranging invasions effected by the legislation on property rights and the importance of ensuring that such radical abridgements of constitutionally guaranteed rights went no further than was required by — to use the language of Article 43.2.2° — ‘the exigencies of the common good’. The submissions on behalf of the applicants, if well-founded, would have as their consequence a decision by the planning authority or An Bord Pleanála in the present case which treated the development as if it were a purely private commercial operation with no beneficial consequences for the community. Such an approach would not merely be irreconcilable with the statutory injunction to An Bord Pleanála to keep itself informed of the policies and objectives of other public authorities: it would wholly disregard those features of the development which serve the public interest in having a modern and effective means of ensuring, so far as possible, safety at sea and thus can be regarded as advancing the common good.
As to the argument based on s. 13(1) of the 1992 Act, that does no more than enable An Bord Pleanála to take into account, in determining an appeal, matters which were not raised by the parties, provided they are matters embraced by s. 26(5) of the Principal Act. It lends no support to the submission that An Bord Pleanála may not take into account the policies and objectives of other public authorities where they are raised by one of the parties to the appeal, as they were in this case. Nor is the absence of a policy directive by the Minister for the Environment of any relevance. Whether or not the minister exercises his *263 powers under s. 7(1) of the 1992 Act, planning authorities and An Bord Pleanála are required, for the reasons already set out in this judgment and in the judgment under appeal, to have regard to national policy decisions in areas other than planning and development where they are relevant to a particular decision.
I would dismiss the appeal and affirm the order of the High Court.
Cablelink Ltd. Applicant v. An Bord Pleanala
[1999] 1 I.R. 596
[1998 No. 150 J.R.]
High Court 23rd February 1999
Carroll J.
23rd February, 1999
This is an application for the judicial review of a decision of An Bord Pleanala (the Board) dated the 5th February, 1998, on appeal from a decision of Kilkenny County Council (the council).
The council granted planning permission on the 11th September, 1997, to Stephen Hartley “for retention of existing poles with application or completion, retention of existing pump house and permission for erection of a television deflector system on lands at Ballinclare, Glenmore, Co. Kilkenny” subject to five conditions.
The applicant is the owner of an M.M.D.S. (Multipoint Microwave Distribution Service) licence under the Wireless Telegraphy (Television Programme Retransmission) Regulations, 1989, for cell 27, being part of counties Waterford and Kilkenny which included the area at Ballinclare, Glenmore, Co. Kilkenny. Unlicensed television retransmission services which operate a deflector system are found in a number of parts of the country. The parents of Mr. Hartley were involved in litigation with the applicant, regarding the operation of a deflector system at Ballinclare, which was settled. The details of that litigation are not relevant to the point I have to decide.
The applicant appealed to the respondent against the grant of planning permission on the following grounds:-
1. lack of technical information supplied;
2. lack of operations details;
3. no reference to the availability of a licence to operate.
The first two grounds are not relied on in these judicial review proceedings.
On the 5th February, 1998, the respondent dismissed the appeal in exercise of the powers conferred by s.14(1) of the Local Government (Planning and Development) Act, 1992.
Section 14(1) of the Act of 1992 provides:-
“Subject to subsection (2), the Board shall in the following circumstances have an absolute discretion to dismiss an appeal –
(a) where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation, or
(b) where, having regard to –
(i) the nature of the appeal (including any question which in the Board’s opinion is raised by the appeal), and
(ii) any previous permission or approval which in its opinion is relevant, the Board is satisfied that in the particular circumstances the appeal should not be further considered by it.”
In coming to its conclusion the respondent relied on a report from the planning inspector dated the 30th January, 1998, which advised that the points raised did not constitute matters relating to the proper planning and development of the area as they more properly related to matters covered by licensing arrangements for such installations set down by central government. This would include technical parameters such as antennae, power, et cetra. He said the applicant appeared to be using the planning appeals procedure for an aim that lies more appropriately in the jurisdiction of communications licensing and he advised that the respondent should consider dismissing of the appeal as being vexatious and without substance or foundation as provided for under s. 14 of the Act of 1992.
The applicant claims that the respondent failed to take into account the fact that Stephen Hartley did not have a licence and failed to take into account the proposals and objectives of the Government or the Minister for Communications relating to the possession and use of apparatus for wireless telegraphy and broadcasting. The applicant argues that the respondent was under a duty to keep itself informed of the policies and objectives of the Government.
Section 5 of the Local Government (Planning and Development) Act, 1976, provides:-
“(1) The Board shall, so far as may in the opinion of the Board, be necessary for the performance of its functions, keep itself informed of the policies and objectives for the time being of the Minister, planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and development (including the preservation and development of amenities) of cities, towns or other areas, whether urban or rural.”
The respondent is also obliged under s. 7(1)(e) of the Local Government Act, 1991, in performing the functions conferred on it by or under that Act or any other enactment to have regard to “(e) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to its functions”.
Under s. 3(1) of the Wireless Telegraphy Act, 1926, no person is entitled to keep or have in his possession anywhere in the State any apparatus for wireless telegraphy save in so far as such keeping or possession is authorised by licence granted under the Act and for the time being in force.
The Broadcasting and Wireless Telegraphy Act, 1988, s. 3(1) provides that a broadcast shall not be made from any premises or vehicle in the State unless it is made pursuant to or in accordance with the licence issued by the Minister.
The applicant interpreted the respondent’s decision as meaning that it decided it could only consider planning and development matters. It says that legality must also be taken into account and that by granting planning permission the respondent is supporting an activity which is unlawful. It claims the respondent should consider the common good and must take account of the policies of the government (see Keane v. An Bord Pleanala [1998] 2 I.L.R.M. 241).
The respondent submits that the only issue is that Stephen Hartley did not possess a licence. This is a personal matter whereas the planning permission relates to land. What the respondent had to decide was whether these buildings or apparatus were appropriate for this land. The grant of planning permission for the erection of a deflector system did not entitle the owner of the land to operate or own a deflector if it would be in breach of any other statutory regulation. Section 26(11) of the Local Government (Planning and Development) Act, 1963, provides:-
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
The addition of a condition providing that no development should take place until a licence had been acquired would have added nothing to the planning permission. Such a condition is already there by virtue of section 26(11). It is not the case that planning permission can only be granted when all other requirements are met. The respondent cannot assume that the grantee will act illegally on foot of planning permission (see Convery v. Dublin County Council [1996] 3 I.R. 153, and Kelly v. An Bord Pleanala (Unreported, High Court, Flood J., 19th November, 1993).
I do not interpret the decision of the respondent as meaning that the respondent failed to take into account the fact that Stephen Hartley did not have a licence or that it failed to take into account government objectives. The fact that there was no licence was made known to the respondent and the respondent was also aware that a licensing system was operated by central government. It was entitled to take the view that the enforcement of the Wireless Telegraphy Acts was a matter for central government. This does not amount to failing to take the absence of a licence or government objectives into account. Rather, the respondent considered them and decided that enforcement of the Wireless Telegraphy Acts was not a matter to do with planning. Further, it could not be said to be supporting an illegal activity. It could not assume that the owner of the land to which the planning permission attached would act illegally. As provided by s. 27(1) of the Act of 1963 the grant of planning permission did not confer the right to own or operate a deflector system.
Huntstown Air Park Ltd v An Bord Pleanála and Fingal County Council
, Aer Rianta Cpt, Minister for Public Enterprise and Irish Aviation Authority (notice parties)
1997 No. 405 JR
High Court
18 December 1998
[1999] 1 I.L.R.M. 281
(Geoghegan J)
GEOGHEGAN J
delivered his judgment on 18 December 1998 saying: The applicant is a company which wants to build a new airport terminal for Dublin Airport which would include ancillary bars, restaurants, retail and duty free areas, executive jet terminal, car parks, aircraft parking apron and taxiways to existing runways. These developments would be carried out on lands adjoining Dublin Airport and owned by the applicant. But apart altogether from planning considerations the scheme is dependent on the minister as owner of the airport permitting the development to be integrated with the airport generally and for there to be access to and use of runways etc. in the airport and on land, the property of the minister. With this end in view an application was made by the applicant to Fingal County Council for outline planning permission for the development. That permission was refused. There were ten reasons for refusal *284 which can be summarised as follows:
(1) The development would be premature by reference to an existing deficiency in the provision of the necessary sewerage facilities.
(2) The development would be premature by reason of a deficiency in the provision of surface water disposal facilities.
(3) The development would be premature by reason of a serious existing deficiency in the road network connecting the area of the proposed development.
(4) The proposal would be contrary to the objectives and provisions of the Dublin Transportation Initiative Strategy.
(5) That after careful consideration the Minister for Transport, Energy and Communications has come to the conclusion that the Huntstown proposals would not be in the best interests of the future development of Dublin Airport and therefore could not be facilitated, such facilitation being a fundamental requirement for the implementation of the proposed development.
(6) The applicant has not shown conclusively that he can assert sufficient interest in the entire site.
(7) It had not been shown adequately how the proposed development could be integrated properly into the overall planning and development of Dublin Airport.
(8) The applicant had not submitted sufficient proposals to comply with the requirements of the Irish Aviation Authority.
(9) The applicant had not submitted sufficient information in relation to water supply proposals.
(10) The applicant had not submitted adequate details on the likely effects of the proposed development on nearby land uses.
The applicant has appealed the refusal to An Bord Pleanála which in turn directed an oral hearing of the appeal. That oral hearing took place on 17 November 1997 before an inspector acting on behalf of the board. At the hearing it was submitted to the inspector on behalf of the applicant that two reports, one dealing with the short, medium and long term land requirements at the airport and the other dealing with the air-side system in the context of the current and forecast peak movement rates, air traffic mix and types and plans to handle future demands both of which were referred to in the original objection lodged on behalf of Aer Rianta with An Bord Pleanála, be directed by the inspector to be produced at the hearing. It was part of the applicant’s case that sight of these reports was necessary for any proper determination of the appeal. The inspector requested Aer Rianta to produce the reports but Aer Rianta refused on grounds of commercial confidentiality. Following on the refusal, the inspector refused to make any further direction in relation to the documents and insisted on proceeding with the appeal. That is merely a bald outline of the facts. It is, I think, important to add that the applicant had been looking for the production of the *285 two reports at much earlier stages in the planning process, including the stage of the application to Fingal County Council. Furthermore, prior to the oral hearing the applicant had requested An Bord Pleanála to insist on the production of the documents and by a letter of 12 November 1997 the board wrote to the applicant’s architects stating ‘however it is open to you to raise such matters at the oral hearing on 17 November 1997’.
The applicant has now brought these judicial review proceedings pursuant to leave granted by McGuinness J on 18 November 1997. The applicant seeks an order of certiorari, an order of mandamus, an order of prohibition, an injunction and a number of declarations but they are all directed towards the same basic complaint of the applicant. The applicant claims that the production of the two reports by Aer Rianta ought to be insisted upon. The specific decision sought to be quashed is the ‘decision of the respondent, its servant or agent’ made on 17 November 1997 not to require Aer Rianta and/or the Minister for Public Enterprise to furnish the documents. I do not find it necessary to identify the different nuances underlining the several different reliefs as the complaint and the end in view remain the same. In legal terms, that complaint is that the respondent in all the circumstances was bound to exercise its powers under s. 10 of the Local Government (Planning and Development) Act 1992. That section reads as follows:
(1) Where the board is of opinion that any document, particulars or other information is or are necessary for the purpose of enabling it to determine an appeal, the board may serve on any party or on any person who has made submissions or observations to the board in relation to the appeal, a notice under this section—
(a) requiring that person, within a period specified in the notice (being a period of not less than 14 days beginning on the date of service of the notice) to submit to the board such document, particulars or other information (which document, particulars or other information shall be specified in the notice), and
(b) stating that, in default of compliance with the requirements of the notice, the board will, after the expiration of the period so specified and without further notice to the person, pursuant to s. 11 dismiss or otherwise determine the appeal.
(2) Nothing in this section shall be construed as affecting any power conferred on the board by or under any other enactment.
It is submitted on behalf of the applicant in the first instance that the decision of the inspector not to insist on the production of the reports and to continue with the oral hearing must be regarded as a decision by the board through its servant or agent not to exercise its powers under s. 10. Alternatively, it is submitted that *286 the appeal has still not yet been determined and that the board itself has improperly failed to exercise its powers under s. 10. In answer to any objection that the board could not do so from and after the stay being put on the hearing and further consideration of the appeal by McGuinness J pending the hearing of the judicial review, it is submitted that the board was empowered to do so by virtue of a later order of McCracken J made 9 March 1998 and the operative part of which read as follows:
IT IS ORDERED that the said stay be lifted only in respect of the consideration by the respondent of said appeal without in any way entitling it to proceed with the hearing of said appeal.
As a fallback position the applicant in part relies also on s. 82 of the Local Government (Planning and Development) Act 1963 as amended and in particular on subs. (7)(a) which reads as follows:
(a) Subject to the following paragraph, a person conducting an oral hearing of any reference or appeal may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing or to produce any books, deeds, contracts, accounts, vouchers, maps, plans or other documents in his possession, custody or control which relate to any such matter ….
The applicant sought to amend the statement of grounds at the hearing so as to include a complaint that the inspector had not carried out his functions under that subsection. After hearing argument from all the parties I refused the amendment. The inspector being the person who conducted the oral hearing is not a party to the proceedings and at any rate no request had ever been made to him to make a formal requirement under that subsection. I took the view that an amendment would not have been justified and still less can the applicant rely on that subsection in the absence of amendment. In my view s. 82(7) cannot be invoked in any way in support of this judicial review application. The case entirely rests on s. 10 of the 1992 Act. Before I deal in substance with the case made under s. 10 I think that I should deal with three preliminary or procedural points made by counsel on behalf of Aer Rianta. The first is that the application was not brought promptly. I disagree. The application was brought shortly after the inspector’s decision. The second is that the alleged decision of An Bord Pleanála sought to be quashed is a ‘decision’ for the purposes of the new provisions in the 1992 Act requiring leave for judicial review to be applied for within strict time limits and on notice to all relevant parties including An Bord Pleanála and narrowing the grounds on which leave can be given. This argument was not made by counsel for An Bord Pleanála or by counsel for the minister. I believe *287 that there is no validity in it. I think that any reading of the 1992 Act in context makes it clear that in relation to An Bord Pleanála the decisions referred to are the decisions to grant or refuse permission and not decisions of an informal nature that might be made in relation to any particular matter arising in the processing of the appeal. I therefore reject the submission that the judicial review proceedings are invalid on this ground.
The third objection of a quasi preliminary nature made by Mr Sreenan SC as counsel for Aer Rianta is that the formal objection lodged by Aer Rianta with Fingal County Council and which relied on the two reports now sought to be produced was withdrawn and a new objection not referring to and not relying on those reports lodged. Aer Rianta claim that this happened when following on a request for further information from the applicant by the county council, much more elaborate details of the scheme including substantial alterations in it were given which, in the argument of Aer Rianta, was effectively a different scheme. It is suggested that there was then a new application. I cannot accept this argument either. It seems to me that at all stages as far as the planning files were concerned there was one application with one reference number. The original objection referring to the reports is on that file and An Bord Pleanála would be entitled to take note of their existence and to consider whether it required those reports or not.
But I am nevertheless satisfied that this application for judicial review must be refused on the ground that An Bord Pleanála is entitled to exercise its powers under s. 10 of the 1992 Act at any stage before it makes its final decision and therefore any complaint that it has not done so is premature. Since I have formed this view, I think it would be quite wrong for me to deal with any of the other arguments put forward as to whether there would be adequate grounds or not for the board to exercise the powers. Indeed, difficult questions might arise in this connection as to whether, for instance, the board could exercise its power under s. 10 if it considered the documents necessary to determine a particular ground of refusal even in a case where the board would be refusing the application on other grounds at any rate. I am making no decision on this point as I do not consider that it would be appropriate to do so. I think that it is quite clear that this application is premature. In this connection it is appropriate to cite s. 9 of the 1992 Act. That section reads as follows:
Where the board is of opinion that, in the particular circumstances of an appeal, it is appropriate in the interest of justice to request any party or any person who has made submissions or observations to the board in relation to the appeal to make submissions or observations in relation to any matter which has arisen in relation to the appeal, the board may, in its discretion, notwithstanding ss. 4(3), 7(4), 8(4) or 13(3)(b), serve on any such person a notice under this section—
(a) requesting that person, within a period specified in the notice (not be *288 ing less than 14 or more than 28 days beginning on the date of service of the notice) to submit to the board submissions or observations in relation to the matter in question, and
(b) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the board will, after the expiration of that period and without further notice to the person, pursuant to s. 11 determine the appeal.
The importance of this section in the context of this case is that if the board in its wisdom decides that the two reports commissioned by Aer Rianta are necessary for the purpose of enabling it to determine an appeal and it decides to serve a notice under s. 10 it can then decide if fair procedures so require it that the applicant will have an opportunity by virtue of a notice under s. 9 to make submissions or observations in relation to any particular matter arising out of the reports which the board considers relevant in determining the appeal.
S. 11 of the 1992 Act provides that where a notice has been served under s. 9 or s. 10 the board at any time after the expiration of the period specified in the notice may, having considered any submissions or observations or documents, particulars or any other information, submitted by the person to whom the notice has been served without further notice to that person determine or in the case of a notice under s. 10 dismiss the appeal.
Because I am deciding this case on grounds of prematurity, I have thought it inappropriate to comment on the many other arguments made before me. Nevertheless, I think I should clearly indicate my view that the word ‘necessary’ in s. 10 is by no means to be treated as a synonym of ‘relevant’. The document, particulars or other information only become ‘necessary’ within the meaning of s. 10 if the board cannot properly determine the appeal without them. However, as I have already indicated, there may be a question mark as to whether it may be appropriate to serve a s. 10 notice where the document, particulars or information are ‘necessary’ to deal with a particular ground of refusal appealed against even though independently of that ground the board would be dismissing the appeal. This question should be left to be dealt with in a case where it properly arises and where it is fully argued on both sides. I am not satisfied that that has been the case here. I therefore express no view on it.
For the reasons indicated, I must refuse this application for judicial review.
Hickey v. An Bord Pleanala
[2004] IEHC 226 (10 June 2004)
OLLOWS, ON THE 10TH DAY OF JUNE 2004
MR. JUSTICE SMYTH:
The Applicant seeks judicial review of a decision of the Respondent (the Board), dated 18th November 2002, granting planning permission to the first-named Notice Party (Galen) for development comprising the construction of industrial buildings, including pharmaceutical manufacturing facilities, ancillary offices and staff facilities, boiler plant accommodation and related works at Ardee, County Louth. The Applicant resides in the immediate vicinity of the proposed development and she and her family carry on a market gardening and farming business in the area.
The Applicant did not appeal the notification of an intention to grant planning permission by the second- named Respondent (LCC) on 8th November 2001. However, a number of appeals were taken against that decision, including an appeal from two sons of the Applicant. The Applicant became an observer to the appeal before the Board by reason of having responded to the notice published by the Board of receipt of the Environmental Impact Statement (EIS) in respect of the proposed development. The Applicant, having participated in the appeal, albeit as an observer, no issue was taken by the Board of the Applicant’s locus standi to seek to issue these judicial review proceedings. However, the Board has put in issue the Applicant’s locus standi to challenge the validity of the decision challenged on the basis of the time allowed to respond to a notice pursuant to Section 9 of the Local Government (Planning & Development) Act 1992, in circumstances where the Applicant did in fact respond to the notice served upon her within the time permitted.
There are, therefore, two issues raised by these proceedings requiring determination:-
1. The Applicant asserts that the proposed development was such as to require an Integrated Pollution Control Licence (IPC Licence) to be granted by the Environmental Protection Agency (the Agency) pursuant to the Environmental Protection Agency Act 1992. Based on this assertion, the Applicant asserted that the public notices were inadequate as they did not advert to the supposed requirement for an IPC Licence and that the Board erred in its consideration of the appeal in considering the risk of environmental pollution from the activity to be carried on in the proposed development contrary to the provisions of Section 98(1) of the Environmental Protection Agency Act 1992.
2. The Applicant contends that the time allowed by the Board for response to a notice served under Section 9 of the Local Government (Planning & Development) Act 1992 requesting further submissions or observations from the Applicant was inadequate.
THE LAW AND LEGAL SUBMISSIONS
(I) Section 98 of the Environmental Protection Agency Act 1992 Mr. C. Fitzgerald SC, for the Applicant, submitted that the proposed development is for purposes of an activity which falls within paragraph (5) of the First Schedule to the Environmental Protection Agency Act 1992, and, consequently, requires an IPC Licence. Argument was advanced as to how the nature and extent of the intended development was described in the documentation; eg, tableting facility, pharmaceutical manufacturing facility, tableting facility and female health care facility. It is clear from the evidence (eg, paragraph (7) of the affidavit of Shane Herlihy sworn on 28th February 2003, and filed on behalf of Galen, that at least five months before LCC made its decision the Applicant had decided not to change the nature and extent of the notified development but “to change the type of products” that would be produced in the proposed facility. The description of the development is accurately recorded at paragraph 2, page 4 of the report of the Inspector of the Board. In law, context is all and the purpose of public notices are to convey to the public and interested parties, in particular, the nature and extent of the development, it is not intended to be an exhaustive description of the facility proposed. Even in the instant case (indeed, as in all in others a sense of proportion is to be applied) where the reference to the use of solvents is disclosed to the Agency, the volume is well below the level that might have concerned the Agency that an IPC Licence was required.
It is clear from the evidence that in April/May 2001 the Agency had appreciated and identified the distinction between formulation and manufacturing (or, in the words of Galen, secondary pharmaceutical manufacturing and primary pharmaceutical manufacturing) and that the Agency wrote to LCC on 30th July 2001, as follows:-
“Re: Permission for construction of industrial building incl. pharmaceutical manu-facturing facilities and ancillary offices and staff facilities, boiler
plant acc, security lodge, access and internal distributor roads and site works, Currabeg, Ardee.
Dear Ms. O’Sullivan,
I am to acknowledge receipt by the Agency on 30th July 2001 of your documentation in relation to the above mentioned planning
application.
The Agency has assessed and determined that Galen Holdings plc do not require to obtain an Integrated Pollution Control (IPC) Licence in accordance with the First Schedule to the Environmental Protection Agency Act 1992 for their proposed facility at Ardee, County Louth.
Therefore, we have no comment or observations to make on the enclosed Environmental Impact Statement.
Yours sincerely,
Noleen Roche
Licensing and Control.”
Subsequent to the lodgement of an appeal to the decision of the LCC, this letter would have been available or available on inspection to the Applicant. In my judgment, given that the Agency is the expert body entrusted with the responsibility under the Environmental Protection Agency Act for IPC Licensing, Galen and LCC were entitled to accept its determination, as expressed in the letter of 30th July 2001, that an IPC Licence was not required and to proceed with the planning application on that basis. The concerns of the Applicant (and perhaps others) that she “believed that the development required to be the subject of an IPC Licence from the Agency, and that to the extent that it failed to deal with this issue, the entirety of the application was fundamentally invalid and void” are expressly recorded at p.17 of the Inspector’s Report. This is not a case where a decision was made without the knowledge of the Applicant’s concerns. In the affidavit of the Applicant, the possibility that the process or processes intended to be carried on may come or might fall under two of the sub-classes set out in paragraph 5 of the First Schedule to the Environmental Protection Agency Act or that it might fall under paragraph 12.2. There was no scientific evidence put before the court by the Applicant to show that an IPC Licence is required.
The legislative entitlement to determine when and where an IPC Licence is necessary and upon what terms it should issue has been conferred on the Agency by Part IV of the Environmental Protection Agency Act 1992. The Board does not have any jurisdiction to determine whether an activity to be carried out in a proposed development which is the subject of a planning application also requires an IPC Licence. In such circumstances, Ms. N. Butler, SC, for the Board, submitted the requirements (as contended for by the Applicant) for the planning notice to indicate that the development is for the purposes of an activity in relation to which license is required pursuant to Regulation 15(2) of the Local Government (Planning & Development) Regulations 1994 did not arise. In my judgment, the submission of the Respondent is to be preferred as correct — the position could be quite the reverse in a situation where the Agency determined that an IPC Licence was necessary, but that is not this case.
The Applicant contends that even where the Agency determines that an IPC Licence is not required, the matter relating to the risk of environmental pollution remains a proper matter for consideration in the planning process and that there is no statutory or other reason why the Board should be precluded from taking such matters into account, assuming that they are relevant to the proposed development. This submission has to be considered in the context of Section 98(1) of the Environmental Protection Agency Act 1992, which provides as follows:
“98 (1) Notwithstanding Section 26 of the Act of 1963, or any other provision of the Local Government (Planning & Development) Acts 1963 to 1991, where a licence or revised licence under this Part has been granted or will be required in relation to an activity, a planning authority or An Bord Pleanala shall not, in respect of any development comprising or for the purposes of the activity:
(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or
(b) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,
and accordingly:-
(i) a planning authority in dealing with an application for permission or an appeal for any such development shall not consider any matters relating to the risk
of environmental pollution from the activity;
(ii)An Bord Pleanala shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.”
The restriction on the Board considering the risk of environmental pollution arising from an activity to be carried on in a proposed development is limited to those cases where the activity requires an IPC Licence.
In such case, the risk of environmental pollution from the activity will be considered by the Agency in the course of the decision making process leading to the grant or refusal of an IPC Licence. If the matter were approached as contended for by the Applicant (and ignoring the plain language of the statute), the somewhat absurd result would be that activity which might have potential for environmental pollution, which did not require an IPC Licence, should be permitted without any restraints whatsoever. There is a clear division of competence between the Board and the Agency, and as there cannot be an estoppel in the face of the statute, the Board is, and was, in the instant case acting intra vires when imposing the conditions it did in the decision challenged in these proceedings. In O’Connell -v Environmental Protection Agency & Ors [2003] 1 IR 530, the Supreme Court considered the correct interpretation of Section 98. I am satisfied that the instant case is wholly distinguishable from O’Connell, which was a case where the Agency had decided that an IPC Licence was required and that there was no Environmental Impact Statement and thus no environmental assessment in the context of the planning process. The Applicant in the instant case expressly stated that the decision of the Agency was not being challenged, but she was challenging the failure of the Board to oblige the Agency to require it to decide that an IPC Licence was required. In my judgment, no such obligation exists on the Board. It has no jurisdiction over the Agency. Each body has its own rights, duties and responsibilities under different statutes for different purposes and the line of demarcation is clearly seen in Section 98 of the Environmental Protection Agency Act 1992. The Agency were joined as a Notice Party to these proceedings by order made on 28th April 2004, at ‘the leave stage’ and filed an affidavit which, in my judgment, clearly set out satisfactorily the actions it took and the reasoning of its determination, and I am satisfied that its interpretation of the terms of the First Schedule of the Environmental Protection Agency Act 1992 is correct.
I refuse the relief sought in this regard.
II Section 9 of the Local Government (Planning & Development Act 1992
This statutory provision enables the Board, where it is of opinion that it is in the interests of justice to request any party to an appeal or any other person who has made a submission to the Board concerning an appeal, to make submissions or observations on any matter which has arisen in relation to the appeal. In the event of the Board exercising its discretion, it may …
“…serve on any such person a notice under this section:-
(a) requesting that person, within a period specified in the notice (not being less than fourteen or more than twenty-eight days beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and
(b) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and, without further notice to the person, pursuant to Section 11, determine the appeal.”
Before considering the discretionary nature of the power conferred by the section and the distinction between what the Board may or will do, it is appropriate that the factual background to the issue be noted.
The first appeal in respect of the decision of LCC was received on 3rd December 2001. The Board is set a statutory time objective contained in Section 2 of the Act of 1992, which provides as follows:-
“2(1) It shall be the duty of the Board to ensure that appeals and other matters with which it is concerned are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, insofar as it is practicable, there are no avoidable delays at any stage in the determination of appeals and other matters.”
Accordingly, the Board were required to attempt to determine the appeal before 3rd April 2002. The Board issued a notice as required by Section 2 when it became apparent that it could not determine the case prior to 3rd April 2002, and stated it intended to determine the case before 2nd July 2002. The Board issued a further letter on 1st July 2002, indicating that it intended to determine the appeal before 19th September 2002.
The bulk of the documentation and information relating to the application by Galen had already been in the public domain for a considerable time (eg, the original application of 18th January 2001, the EIS of 18th July 2001, and the “further information” which was provided on 3rd October 2001). The Board requested from Galen certain points of detail in respect of the application — this was not fundamental to an understanding of the proposal, but to ascertain some refinements to the information which had been in the public domain for a considerable length of time. The Board received, on 14th October 2002, the response of Galen, which was notified to the Applicant by letter dated 16th October 2002, and received the following day by the Applicant’s solicitors. The reply dated 29th October 2002 complains that the time within which the Board had requested a reply was thirteen days and requested a period of six to eight weeks in which to consider matters and make a response. In anticipation of a positive response to this request, the solicitors (inter alia) stated:-
“… we have referred the matter to our experts for their analysis and we will submit a detailed response when you confirm the period within which such response would have to be made …”
In the light of Section 9(b) of the Local Government (Planning & Development) Act 1992, the Board did not respond to this application for an extension of time but considered the Applicant’s solicitor’s letter and proceeded to make the decision of 18th November 2002, impugned in these proceedings. Neither in the interval between 29th October 2002 and 18th November 2002, nor since the latter date, or in these proceedings, is it revealed to what expert(s) the Board’s letter of 16th October 2002 (with enclosure) had been referred to or what it is that might have been put before the Board to influence its decision.
Notwithstanding the discretionary terms of Section 9 as cited, the fact is admitted that the Applicant was only given thirteen days, rather than fourteen days, within which to respond to the Board’s letter of 16th October 2002. A reply was made within time and it was not stated then or in the course of the hearing that one further day would have made any difference to the Applicant’s response (the public health concern or issue was clearly live from 27th March 2002 onwards). However, Mr. C. Fitzgerald SC urged the court to apply the time limit provision of the statute in absolute terms. In this regard, I believe guidance is to be had in the judgment of Henchy J in Monaghan UDC -v- Alf-a-Bet Promotions Ltd [1980] ILRM 64 at p.69:-
“I do, however, 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 immediately in the Regulations, nominated as 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 obligation has been substantially, and therefore adequately, complied with.”
In the instant case, on its own facts, I am satisfied and find as a fact that there has been substantial compliance by the Board under Section 9.
Furthermore, other than is stated in the letter of 29th October 2002, of the Applicant to the Board, no prejudice has been sustained by any evidence put before the court. In Ryanair Ltd -v- An Bord Pleanala (unreported the High Court 27th February 2004), 0 Caoimh J considered the provisions of Section 131 of the Planning and Development Act 2000, which is in like terms to Section 9 of the Local Government (Planning and Development) Act 1992. At p.37 of the transcript of the judgment, 0 Caoimh J stated:-
“…with regard to the notice sent to the Applicant pursuant to Section 131 of the Act of 2000, I am satisfied as a matter of fact that even if it purported to restrict the time within which a submission might be made at the time, this in fact did not preclude the making of any submission by the Applicant as it did in fact make its submission within the period allowed. Once the submission has been made within the statutory period, the letter inviting same could not act in a manner to defeat the legal rights of the Applicant. I am satisfied that on the facts of this case the issue raised is essentially a moot and the Applicant has failed to advance substantial grounds for contending that the impugned decision is in any way invalidated or ought to be quashed by reason of the terms of the notice in question.”
With unfeigned respect, I adopt and apply his decision to the instant case. I refuse relief on this ground.
Much interesting and learned argument was addressed to me, with supporting authorities, as to what the law understood by the expression “manufacturing”. While commending the industry of counsel in this regard, I believe it to be outside the scope of judicial review of administrative action and, accordingly, do not feel called upon to make any decision in that regard. Accordingly, I refuse the reliefs sought on the grounds upon which leave was granted.
END OF JUDGMENT
Murphy v Cobh Town Council
[2006] I.E.H.C. 324
JUDGMENT of Mr. Justice John MacMenamin dated the 26th day of October, 2006.
On 10th October, 2005 having heard an application for leave on notice, O’Sullivan J. granted the applicants liberty to seek judicial review inter alia for an order of certiorari to quash the decision of the second named respondents (“the Board”) to reject an appeal submitted on behalf of the members of the Holy Ground and Environs Action Group (hereinafter the “Action Group”) upon the basis that it had not been accompanied by an appropriate acknowledgement in accordance with s. 127(1)(e) of the Planning and Development Act, 2000.
The appeal rejected by the Board, was submitted by the Action Group’s committee on behalf of its members. It concerned a second application for a planning permission for mixed use residential and commercial development at Connolly Street Cobh Co. Cork. This development, in the area well known as ‘The Holy Ground’; was an extensive one. It consisted of a marina, 150 apartments in blocks of two and three storeys, a six storey apartment building, commercial units, and a car park. The members of the Action Group who reside in Cobh, object on the basis of the impact of this development on the environment of the area, a risk of landslides, ecological aspects and alleged destruction of views of Cobh Harbour from a number of different vantage points.
The applicant in these proceedings lives with her parents in close proximity to the location of the intended development. She has been a member of the Action Group since 2001 when the first application for planning permission for a similar development was submitted. That application for was refused on appeal by the Board. The reasons therefor closely to correspond with a number of the present objections.
The Action Group Committee, on behalf of its members, lodged an objection to the second application for planning permission for the proposed development with the first respondent (the ‘Town Council’). This was dated 29th November, 2004. The Town Council wrote to the Action Group by letter dated 30th November, 2004.
The first lines of the letter state:
“A Chara,
I acknowledge receipt of your communication regarding the following application for Permission under the Planning and Development Act, 2000: …”
The date of receipt of the communication was recorded by date stamp. The letter recites details of the applicant for permission, the nature of the proposal, and the site. The words in italics refer to the objection aforesaid.
The letter inter alia states:
“Your communication was received in this office on 29 November 2004. Receipt No. 31033 in respect of €20 fee paid as attached.”
The letter was signed (in large typeface) by Mr. Padraig Lynch. Beneath this in ordinary script, is Mr. Lynch’s description as Town Clerk of Cobh Town Council. Below, in what can only be described as minuscule print, is the date of the letter, ‘30 November 2004’. No date was placed at the head of the letter, nor elsewhere in ordinary sized font. Accompanying that letter was the receipt.
The Town Council subsequently decided to grant planning permission for this development. By a further letter (using similar unusual dating procedure and font size) the Town Clerk informed the Action Group that the Town Council had by order dated 16th of December, 2004 decided to grant permission. That letter contained an identical description of the nature of the proposal, and also enclosed a copy of the notification of the decision of the Town Council which had been sent to the applicant for planning permission. The Action Group were advised to note the requirement of any appeal to An Bord Pleanála. This letter of 17th December, 2004, was written in fulfilment of a requirement upon the Town Council of Article 31 of the Planning and Development Regulations 2001 to notify those who made a submission or observation upon the application. This time the letter commenced with the words:
“I refer to previous correspondence regarding the application for Permission …”
A third party appeal was lodged with the Board it is required to inform the Town Council, who were in turn required by Article 69 of the Planning and Development Regulations 2001, to inform those who made submissions or observations. This was done by further letter from the Town Council on 11th January, 2005 and received by the Action Group. This time it commenced:
“I acknowledge receipt of your communication regarding the following application for Permission …”,
described the development the subject matter of the planning application (04/52053) and on the following pages indicated that the third party Appeal had been lodged.
The Action Group Committee instructed their solicitor also to appeal the decision of the Town Council to the Board. An appeal dated 19th January, 2005 was, on these instructions, lodged, but accompanied by the letter from the Town Council to the Action Group dated 11th January, 2005 and not the letter in such singular manner dated of the 30th November, 2004.
By letter dated 26th January, 2005 the Board indicated its decision to reject the appeal, as s. 127(1)(e) of the Act of 2000 had not been complied with. The Board’s position was that the first letter acknowledging the observation or submission dated 30/11/04 was the acknowledgement which should have accompanied the appeal brought by the Action Group, and not that of the 11th of January, 2005.
The curious procedure adopted by the Town Council in using miniscule font size or typeface, but only for the purposes of dating is letters can only be seen as a trap for the unwary, although not, I am sure, an intentional one.
While there are small divergences between the contents of the three letters there is no divergence in the reference number used by the Town Council; nor is there any discrepancy in the date of the application. In the first letter, it is true the Town Clerk refers to the date of receipt of the letter. But this is set out in normal size print in the text of the letter itself. The unusual date-procedure has not been explained.
In response to the order of certiorari sought quashing the decision of the Board whereby it rejected the appeal, the Board for its part denies that it erred in law or acted ultra vires its powers in deciding that the appeal was invalid. It submits that the appeal was invalid by reason of its failure to comply with the relevant statutory provisions. It denies that the letter dated 11th January, 2005 constitutes an acknowledgment of receipt of a submission or observation on the relevant planning application and contends that only the letter dated 30th November, 2006 would constitute such lawful acknowledgment. This is the sole basis of opposition raised by the Board
The notice parties alone, who are the applicants for planning permission, raise a question of locus standi of the applicant in the proceedings Margaret Murphy. This issue will be dealt with later in the judgment.
The Appeal Framework
The appeal procedure to the Board herein is pursuant to s. 37 of the Planning and Development Act, 2000 (‘the Act’). Section 37(1) (a) of the Act permits the following persons, within the appropriate period and on payment of the appropriate fee, to appeal the decision by the planning authority on a planning application:-
(i) The applicant for planning permission;
(ii) Those who have made submissions or observations in writing in relation to the planning application.
In order for such appeal to be valid and lawful it must comply with s. 127 of the Act. Insofar as relevant, this section provides:
“(1) an appeal or referral shall –
(a) be made in writing,
(b) state the name and address of the appellant or person making the referral and of the person, if any, acting on his or her behalf,
(c) state the subject matter of the appeal or referral,
(d) state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based,
(e) in the case of an appeal under s. 37 by a person who made submissions or observations in accordance with the permission regulations, be accompanied by the acknowledgement by the planning authority of the receipt of the submissions or observations,
(f) be accompanied by such fee (if any) as may be payable in respect of such appeal or referral in accordance with s. 144, and
(g) be made within the period specified for making the appeal or referral.
(2) (a) An appeal or referral which does not comply with the requirements of
subs. (1) shall be invalid….”
Paragraph (e) is of obvious significance, in particular the use of the definite article in reference to “the acknowledgement”. While s. 127(4) states that such appeal or referral shall be accompanied by such documentation pertains or information as to an appellant shall seem appropriate, this subsection is not governed by subsection 2(a) recited above.
Historical background: to The 1963 Act
Under the Local Government (Planning and Development) Act 1963 issues arose as to whether the statutory requirements for a valid appeal were mandatory or directory. In The State (Elm Developments Limited) v. An Bord Pleanála [1981] ILRM 108 Henchy J. found that the specific requirement in the Act of 1963 to include the grounds of appeal with the appeal was directory as opposed to mandatory. That judge stated that if:
“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”.
By Contrast the Act of 2000?
But do these observations apply to s. 127(1) and (2) at all? Or is the position now made clear by the very terms of the section in question?
Here it is not contested by the applicant that an appeal would be invalid if it had not been accompanied by an acknowledgment. What constitutes such “acknowledgement by the planning authority of receipt of the submissions or observations” (See s. 127(1)(e))? What is the effect of non-compliance with the section? In the event of non compliance, may the de minimis rule apply?
On behalf of the applicant it is first urged by Dr. Ford S.C. and Ms. Dowling B.L. that the relevant subsections of s. 127 of the Act of 2000 should be read in conjunction with s. 32(2)(d) of the Act, and Article 29(2) of the Planning and Development Regulations 2001 (“the 2001 Regulations”). They submit the requirement is satisfied by lodging any document from the planning authority which acknowledges that the appellant is a person who made a submission or observation with the appeal. It is contended that this document does not have to take a specific form, be sent at a particular time, and may be sent before, or after, any other statutory notification.
It is therefore necessary to consider the interplay between relevant provision of the Act of 2000 and the relevant articles of the Regulations of 2001.
Section 32(2)(d) of the Act of 2000 permits the Minister for the Environment Heritage and Local Government to make regulations:
“Requiring planning authorities to acknowledge in writing the receipt of submission or observations”.
This statutory objective was effected by Article 29(2) of the Regulations which provides:
“1. (a) any person or body on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of five weeks beginning on the date of receipt by the authority of the application.
(b) any submission or observation received shall
(i) state the name and address, and telephone number and email address, if any of the person or body making the submission or observation and
(ii) indicate the address to which any correspondence relating to the application should be sent
2. Subject to Article 26, the planning authority shall acknowledge in writing the receipt of any submission or observation referred to in sub article (1) as soon as may be following receipt of the submission or observation …”
In addition to the submissions outlined earlier the applicants say the phrase “as soon as may be” is non specific as to time of such a requirement. A planning authority might comply with Article 29(2) by acknowledging receipt of the submissions or observations in a letter containing other information, which it must communicate to those who made submissions or observations.
The Board’s Case
Ms. Nuala Butler S.C., on behalf of the Board submitted that the only document which constitutes “the acknowledgment” is that dated 30th November, 2004; no other document comes within that category. Only this letter was issued by the planning authority in compliance with Article 29 of the Planning and Development Regulations 2001 recited earlier.
The Board denies that the letter of 17th December, 2004 is a letter which acknowledges receipt of submissions or observations. Instead it says that this letter informs the Action Group of the planning authority’s decision on the planning application. Whilst the letter opens by referring to previous correspondence, it proceeds to indicate that the planning authority have, by order dated 16th December, 2004, decided to grant permission for the development of the property. Therefore this letter together with the enclosed notification, the planning authority’s decision, and an enclosed document entitled “Making a Planning Appeal under the Planning Development Act 2000” were issued pursuant to Article 31 of the Planning and Development Regulations 2001 which provides:
“Notification of a decision by a planning authority in respect of a planning application shall be given to the applicant and to any other person or body who made a submission or observation in accordance with Articles 28 or 29 within 3 working days of the date of the decision”.
As to the third letter dated 11th January, 2005, the Board contends it was in fact a letter informing the Action Group of the receipt of a third party appeal in respect of the planning authority decision. This, it is stated, was issued pursuant to Article 69 of the Planning and Development Regulations 2001 which provides:
“69(1) subject to sub article (2), where a copy of an appeal under s. 37 of the Act is sent to a planning authority by the Board in accordance with s. 128 of the Act the planning authority as soon as may be after receipt of the copy of the appeal, shall notify in writing any person who made a submission or observation in accordance with these regulations in relation to the planning application in respect of which an appeal has been made.”
Counsel adds that even if the wrong piece of correspondence was submitted in error (not actually admitted in the course of the proceedings) such error, because of the mandatory nature of the section, cannot constitute a basis for the court disregarding the clear provisions of s. 127(1) (e), any more than an inadvertent omission of an appeal fee under s. 127(1)(f) or an inadvertent failure to make the appeal within the appropriate period under s. 127(1)(g) could justify the court in disregarding those provisions.
Is Section 127 Mandatory?
In Elm Developments referred to earlier Henchy J. identified some of the criteria necessary in order to establish whether the provisions of a statute were mandatory or directory in nature. He observed:
“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 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. If the requirement which has not been observed may fairly be said to be an integral and indispensable 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 statue, non compliance may be excused.” (p. 11 of the judgment).
In McAnenley v. An Bord Pleanála [2002] 2 I.R. 763 Kelly J. concluded that s. 6 of the Local Government Planning and Development Act 1992 (which dealt with an appeals procedure to the Board) was mandatory, and that non compliance with an express statutory requirement on the facts in that case could not be disregarded on a ‘de minimis’ basis. Having been refused planning permission by the notice party, Monaghan County Council, the applicant appealed such refusal to the respondent, An Bord Pleanála. This upheld the decision of the County Council. The applicant applied by way of judicial review for an order of certiorari quashing the decision of the Board on the grounds that there had been a failure on the part of the notice party to comply with statutory obligations imposed on it in respect of the transmission of documents to the respondent namely, the notification of the decision, the report of the Fisheries Board and a section plan.
Kelly J. considered that the intent of the legislature was that the respondent should have before it certain specified documentary material which was on the planning authority file when it made its decision, together with relevant documents which related to the decision itself. But in McAnenley the actual decision of the County Council was omitted, although the Board did have a copy of the notification to grant permission which contained all of the material contained in the decision itself. However the relevant decision was constituted only by order of the County Manager. This essential order was not before the respondent; and such requirement was necessary in order to comply with the mandatory requirements in relation to an appeal. Moreover that judge went on to point out that this was not the only lacuna involved, and that other documentation of importance to the decision making process had also not been forwarded to the Board. Thus, seen in context, Kelly J.’s disinclination to apply a de minimus interpretation of the section is to be seen having regard to the essential and solemn nature of the order of the County Manager which should have been before the Board at the time when it was making its decision, but was not, additionally and in circumstances where such omission was but one of a number of procedural irregularities.
Section 127(1)(e) of the Act of 2000 can only be read in the light of the accepted principles of statutory interpretation, one of the basic premises of which is that, prima facie, the meaning of an enactment which was intended by the legislature should be taken to be that which corresponds to its literal meaning (see Howard v. Commissioner for Public Works [1993] ILRM 665 and Telecom Eireann v. O’Grady [1998] 3 I.R. 432).
In Graves v. An Bord Pleanála [1997] 2 IR 205 the same judge had to consider the provisions of s. 4(5) of the Local Government Planning and Development Act 1992 which provided inter alia that “an appeal shall be made:
(a) by sending the appeal by prepaid post to the Board or;
(b) by leaving the appeal with an employee of the Board at the offices of the Board during office hours”.
Graves, the applicant, instructed his solicitors to appeal to the Board a decision made on 19th December, 1996. The period for making such an appeal expired on 18th January, a Saturday, on which day the offices of the Board were closed. Therefore, by virtue of s. 17(1)(b) of the Act of 1992 the time limit was automatically extended to Monday 20th January 1997 when the offices next were open. On 18th January, 1997 (when the offices were closed) the appeal was hand delivered to a security guard (not an employee) at the offices of the Board. However on 20th January, 1997 before the offices opened, a Board employee found the envelope containing the appeal which appeared to have been placed under the door of the Board’s offices. This employee left it at the Board’s reception desk where it was accepted by the Board and a different employee took possession of the envelope and applied the date stamp to the contents at the offices of the Board during office hours on 20th January, 1997. Kelly J. refused relief on the specific grounds that if the applicant had observed the method of service prescribed by s. 4(5)(b) of the Act of 1992, an employee of the Board must have had the appeal document left with him or her personally in order for the appeal to be valid. He considered that the mere fact that an employee fortuitously came into possession of the appeal documents did not discharge the onus placed upon the applicant to comply with the mandatory provisions of s. 4(5)(b). He stated:
“… To permit of a departure from that procedure would not merely run counter to the statutory provisions but would, in my view, introduce an element of uncertainty into a procedure which must be strictly construed and rigidly so as to ensure certainty and the protection of third party rights.”
In Graves, the appeal had not been sent by prepaid post to the Board. Nor had it been left with an employee of the Board at its offices during office hours. The mere fact that the appeal came into the hands of a Board employee within the time limit did not avail the applicant.
There was thus failure in strict compliance on a number of fronts.
The essential criteria identified in McAnenley and Graves were the necessity to ensure certainty, the protection of third party rights and compliance with formal and solemn requirements.
What is the position here? I consider the very provision of the Section, its relationship to the Statutory Instrument of 2000, the interpretation of analogous statutory provisions in the McAnenley and Graves, and the principles of statutory provision all lead ineluctably to the conclusion that s. 127(1) of the Act of 2000 is mandatory in effect and that, absent the de minimis rule, non-compliance with its provisions render an appeal invalid. Furthermore I accept that the statutory reference to “the acknowledgment” in subsection (e) must necessarily refer only to the acknowledgment to the applicant’s letter of 29th November 2004, that is the acknowledgment issued by the Town Council on 30th November, 2004. To permit or allow the interpretation urged on behalf of the applicant would of necessity render uncertain that which must be certain, and create doubt as to compliance when the objective of the section is to remove such doubt. This particularly in the light of the stark terms of s. 127(2) of the Act recited above
The de minimis Rule
In order for the Board properly to conduct its affairs there must be strict compliance with statutory procedure provisions. The Board is not entitled, as a creature of statue, to operate outside the four corners of the legislation which governs its powers. It has not actually or explicitly been contended that the document dated 11th January, 2005 was furnished to the Board in error. However there is no other explanation for what occurred.
But to any reader, professional or lay, the dating procedure on the three letters emanating from Cobh Town Council is unwittingly, a trap to the unwary, especially so in view of the general similarity in layout and in substance albeit with some distinctions. It has not been contended that the Board has been detrimentally affected in its procedures nor in any decision. The letter and enclosure is preliminary to any decision. It was furnished within time. No issue arises here as to the circumstance in which it was delivered to the Board. Does the de minimis Rule 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 rule should be applied. That judge declined to grant certiorari against the respondent county council in circumstances where it had before it, in the making of a decision, a site map which was not accurate but where the error contained therein was minor, and where another map was available to the County Council.
In so holding he relied on the judgment in Monaghan UDC v. Alf-a-Bet Promotions Limited [1986] ILRM 64 where at p. 69 Henchy J. said
“I do however feel it pertinent to express the opinion that when the 1963 Act prescribes certain procedures as necessary to be observed for the purposes of getting a development permission which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of permission. In such circumstances, what the legislature has, either mediately in the Act or immediately in the regulations, nominated as being obligatory, may not be depreciated to the level of mere discretion except on the application of the de minimis rule”.
In Ní Chonghaile it was held that the de minimis rule should be applied, in that the public had not been misled, and that the spirit of the regulation was more important than its letter. While this decision arose in the circumstance where the court, on discretionary grounds, declined to grant certiorari, should a distinction in principle should be made between the circumstances of that case and those which arise here 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 three almost identical letters was furnished to the Board. The letter of 11th January 2005, as much as that of 30th November 2004, included the relevant information necessary for the Board to proceed. One cannot ignore either the fact that, at one stage, the Board fairly took it on itself to point out to the applicant herein that she might make submissions or observations on foot of the third party appeal. This was actually done. What the Board suggested was entirely reasonable whether done in exercise of a statutory power or not. However that appeal was subsequently withdrawn, and with such withdrawal, the applicants’ objections were placed at naught.
Here there is no absence of certainty. No “prejudice” is identified as to a detriment to 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 technical and, perhaps trivial way. The objection raised by the Board was essentially itself “technical”. Does the deviation from the mandatory requirement come within the description of being “trivial”, “technical” or “peripheral” identified by Henchy J. in Alf-a-Bet Promotions.? If not complete, the compliance here was substantial.
The facts of this case are distinguishable from those identified by Lavan J. in McCann v. An Bord Pleanála [1997] 264 at p. 271, and Feeney J. in Rowan v. An Bord Pleanála and Anor (the High Court Unreported 26 May 2006), where failure of compliance with a mandatory time requirement arose. In both judgments such absence of compliance necessarily entailed a substantive or fundamental non-fulfilment of a statutory procedural requirement, more analogous to a failure to issue a summons within a statutory limitation period.
Here no such considerations arise. There was in fact substantive compliance with statutory (and mandatory) time requisites. Should the enclosing of this incorrect letter, with objection, in circumstances earlier outlined, render this appeal invalid? I am not persuaded that it should. The situation is one where the de minimis rule should apply.
Locus Standi
A second point raised herein is that advanced by the notice parties although studiously not by counsel on behalf of the Board: that is a question of locus standi. Though their counsel Mr. James Macken S.C. the notice parties say that the applicant refers to being a member of the Action Group since 2001, and also refers to the Action Group having lodged an objection “on behalf of the members” to the planning application in respect of these proceedings on 29th November, 2004.
In the applicant’s affidavit of 22nd March, 2005 she exhibited an earlier letter of objection from her solicitors, which refers to that firm’s clients as being four individuals (supplying their names and addresses) “collectively known as the Holy Ground and Environs Action Group”. It is now stated that the applicant is not named as being one of the clients, although Mary Murphy (the applicant’s mother with the same address) is so named. It is said that the name of the objectors set out in a letter from the Action Group’s solicitors of 29th November, 2004 identified the objectors by name and address and that the applicant was not among them.
The order of O’Sullivan J. was dated 10th October, 2005. Before the court on that leave application was an affidavit sworn by Mr. David Pearson Solicitor on 18th July, 2005 wherein the issues of the sufficiency of the applicant’s interest, and her locus standi were canvassed. In response, the applicant set out in an affidavit sworn on 22nd July, 2005, reasons why she was not named in the objection or submission and the appeal, namely that the members of the Action Group had decided to lodge an objection, but that instead of each member doing so, or being named in the said objection, the it was decided that the committee on behalf of the Group would lodge the objection, submission, and subsequently the appeal. All three of these affidavits, and supporting exhibits, were before O’Sullivan J. at the leave application where leave was granted pursuant to s. 50 of the Act.
Further affidavits were filed thereafter the notice parties again raising the distinction between the applicant and her mother (also a committee member of the Action Group) who resides at the same address. The position thus closely resembled that which occurred in Chambers v. An Bord Pleanála [1992] 1 I.R. 134 where the Supreme Court (McCarthy J.) held that an applicant in a very similar position “clearly had locus standi” in the action.
The general issue of “substantial grounds” and sufficiency of interest has already been well traversed as, in Lancefort v. An Bord Pleanála (No. 2) [1999] 2 I.R. 311 Keane J. considered the issue as to the point in proceedings in which the issue of locus standi should be raised. Having considered English authority to the effect that the issue should not be determined until a substantive application is heard, and Irish authority that standing should be determined as a threshold issue on the application for leave, that judge stated:
“Those considerations do not apply however to applications seeking judicial review of decisions by planning authorities or the first respondent, An Bord Pleanála since in such cases the application must be made on notice to the authority concerned and the applicant must at that stage show that there are substantial grounds for contending that the decision in question was invalid. As a general rule there should be sufficient evidence before the court at that stage to enable the judge to determine the question of standing: to require the court in every case to reserve the question until the hearing of the substantive application would be inconsistent with the general statutory scheme.”
While Keane J. adds that the mere fact that an applicant has established “substantial grounds” does not per se give rise to an implication that locus standi has been established, such determination was grounded upon the very specific subsequent findings made in Lancefort as to an absence of sufficiency of interest, which followed a rigorous analysis of the legal and factual merits of the case establishing that the applicant should not then be recognised as having locus standi to mount such a challenge.
The approach adopted by Morris J. at first instance in Lancefort, and approved by Keane J. thereafter, which related to procedure under s. 82 of the Local Government (Planning and Development) Act 1963 has now been embodied in the Act of 2000 which placed matters on a statutory footing. Section 54(b) of the Act of 2000 now provides that
“ … leave shall not be granted to bring judicial review proceedings pursuant to s. 50 unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the Application”. Thus sufficiency of interest and substantial grounds are now both pre-requisites for leave to seek judicial review.
Furthermore, s.50(4)(c) of the Act provides that:
“Without prejudice to the generality of paragraph (b) leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the court that
“(i) the applicant …
(iii) in the case of a decision of the board on any appeal or referral, was a party to the appeal or referral or a prescribed body or other person who made submissions or observations in relation to that appeal or referral, … or
(iii) in the case of a person (other than a person to whom clause (1) (2) (3) (4) or (5) applies, there were good and sufficient reason for his or her not making objections or submissions or observations as the case may be”.
As a matter of law and fact these issues fell for determination at the leave application. This decision was not appealed. No application was made to set aside the grant of leave. No facts have been adduced which might demonstrate that the factual basis which subtended the leave application (and order of O’Sullivan J.) has “fallen away” as occurred in Lancefort.
Where leave to seek judicial review is refused because an applicant has failed to meet or cross the locus standi threshold such determination is final. If leave to apply for judicial review is granted, then absent exceptional circumstances, to
re-address the issue of locus standi at the substantive hearing would effectively, be to run counter to the intendment of the provisions of s. 50(4)(b) of the Act of 2000, the expeditious determination of planning applications provided under s. 50(5) of the Act; the effective use of court time, and consistency in decision making.
The issue of locus standi was raised prior to and at the determination to grant leave. It was the same substantive issue as raised herein. That judge determined nonetheless that substantial grounds, and sufficiency of interest had been established. In such circumstances I do not consider that it would here be appropriate to “re-visit” the issue of locus standi.
I consider that the approach adopted by the Board in refraining from raising this issue in this matter was the proper one. I am fortified in this view by a consideration of a number of judgments of relevance and value on this point:
In Ballintubber Heights Ltd v. Cork Corporation (The High Court, Unreported, 21st June, 2002) Ó Caoimh J. observed that the planning code clearly envisaged that the issue of standing should be determined at the leave stage. In Harrington v. An Bord Pleanála (The High Court, Unreported, 26 July, 2005) Macken J. observed that a “substantial interest” may be a wider than a financial interest, or an interest in land
“and therefore in theory it can cover a wide variety of circumstances”.
She added
“I consider that the substantial interest which the applicant must have is one which he has also expressed as being peculiar or personal to him”.
In O’Shea v. Kerry County Council [2003] 4 IR 143 Ó Caoimh J. determined that a general interest that the law should be upheld was not, of itself a substantial interest. The issue was considered again by that judge in Ryanair v. Aer Rianta [2004] 2 IR 344 to similar effect.
O’Neill J. I had to deal with the issue in O’Brien v. Dun Laoghaire Rathdown County Council. (The High Court O’Neill J. 1st June, 2006.). Latterly Clarke J. dealt with the question in Harding v. Cork County Council and Anor (The High Court, Unreported 12th October, 2006) which touched on circumstances, where on a reconsideration of the grounds on which leave was granted, it might fall to the court to look again on the issue of locus standi, in the event that grounds upon which leave was granted, were at full hearing found to “fall away” thereby leaving the applicant with an insufficient interest, or no locus standi.
While helpful on the point of locus standi, (although like Chambers they were not cited). they do not alter my conclusions. No new evidential basis has been established either in fact or law to review the determination made at the leave stage on locus standi. It has not been shown that the evidential basis which grounded the decision of O’Sullivan J. has been substantially altered.
In the circumstances having regard to the determinations reached on the issues I consider the applicant is entitled to judicial review by way of certiorari quashing the decision of the respondent dated 26th January, 2005, refusing to accept that the applicant has made valid appeal in respect of the development register number TP0452053.
George Graves Applicant v. An Bord Pleanala Respondent
Time Limits
; Cork County Council and Raymond Hennessey, Notice Parties
[1997] 2 I.R. 205
[64 J.R. 1197]
High Court 17th June 1997
Kelly J.
17th June 1997
The facts
On the 19th December, 1996, the first notice party, Cork County Council (the Council), decided to grant planning permission to the second notice party, Raymond Hennessy (Mr. Hennessy). The permission was in respect of a development consisting of a hostel and treatment plant together with an outfall to the sea situate at Ballylickey, Bantry, Co. Cork. The applicant in these proceedings (Mr. Graves) together with a number of other individuals had objected to the permission sought by Mr. Hennessy.
On the 20th December, 1996, the Council informed Mr. Graves through his solicitor that it had decided to grant the permission in question subject to conditions.
Mr. Graves instructed his solicitors to appeal to the respondent, An Bord Pleanala (the Board). It is common case that such an appeal had to be made within one month of the 19th December, 1996. Accordingly, the period for the making of such an appeal expired on the 18th January, 1997.
The 18th January, 1997, was a Saturday. Such being so, the provisions of s. 17 of the Local Government (Planning and Development) Act, 1992, applied to the period of time within which the appeal in question had to be made. I will consider the terms of this section in due course.
The appeal took the form of a letter dated the 14th January, 1997, written by Mr. Graves’ solicitors. The letter was addressed to the Board and set out the basis upon which the appeal was being made.
On Saturday the 18th January, 1997, Mr. Graves’ solicitors instructed a Mr. Lynch to deliver this letter together with the sum of £100 in cash which was enclosed to the offices of the Board at Irish Life Centre, Lower Abbey Street, Dublin 1.
The Board’s premises comprise portions of floors 3 and 4 of blocks 6 and 7 of the Irish Life Centre at Lower Abbey Street, Dublin. The Board’s reception area is situate on floor 3 of block 6. The entire of the Board’s premises is normally locked over the weekend and was so locked on Saturday the 18th January, 1997. No portion of it was open to the public on that date. Furthermore, there was no employee of the Board present on the Board’s premises on the 18th January, 1997.
Mr. Lynch delivered the letter together with the fee enclosed to a security man who was on duty at the Irish Life Centre at 3 p.m. on Saturday the 18th January, 1997. Mr. Lynch was apparently informed by the security man that he (the security man) would furnish the letter to an employee of the Board on the morning of the 20th January, 1997. It is common case that the security man was not an employee of the Board.
Mr. Colgan was a paper-keeper employed by the Board. He attended at the premises of the Board at Irish Life Centre on the following Monday morning, the 20th January, 1997. In the course of his employment at 8.20 a.m. on that day, he found an envelope which appeared to have been shoved under the door of the reception area of the Board’s premises on the third floor. The envelope was not handed to or left with him and he did not know the exact time or date that it was shoved under the door. However, having found it he marked the envelope by writing on it “Found shoved under door to reception area, floor 3 at 0820 hours on 20/1/97”.He signed this notation with his initials. He immediately placed the envelope on the desk of the Board’s receptionist. It is common case that this was the envelope which contained Mr. Graves’ appeal and the £100 in cash.
Having left the envelope on the receptionist’s desk, Mr. Colgan had no further dealings with the matter. It is quite clear from the evidence that at some stage during the 20th January, 1997, the envelope was opened by an official of the Board and the appeal was date-stamped as of that date. It is accepted by the Board for the purposes of this application that the taking possession of and the opening of the envelope together with the application of the date stamp to the contents was done by an employee of the Board during office hours on the 20th January, 1997. On the afternoon of that day at 3.54 p.m. Mr. Graves’ solicitors sent a further copy of his letter of appeal of the 14th January, 1997, to the Board by fax together with a covering fax transmission document and a covering letter. The covering letter was in the following terms:
“20th January 1997
The Secretary
An Bord Pleanala Floor 3
Block 7 Irish Life Centre
Lower Abbey Street Dublin 1 By Fax 01 8722684
Re: Proposed Development of Hostel and Treatment Plant at Ballylickey, Bantry, Co. Cork. Applicant: Raymond HennessyPlanning Register No. W/96/2776
Dear Sirs
Our letter to you dated 14 inst., a copy of which we enclose herewith, was hand delivered to your office on the 18th inst. It was accepted at 3 p.m. by Mr. Roy Digman (sic). Please confirm that same has been received by you.
Yours faithfully
Ronan Daly Jermyn.
Enclosure (1).”
The Board contended that it had no record of receiving this fax. In support of this contention it exhibited an “activity report” from the Board’s fax machine which purportedly recorded all of the faxes received by the Board from 11.10 a.m. on the 17th January, 1997, to 16.48 p.m. on the 20th January, 1997. It is correct to say that this activity report does not record the fax of the 20th January as having been received by the Board. Nonetheless, for reasons which I will come to in a moment, I am satisfied that the fax in question was received by the Board. No reply to it was forthcoming from the Board.
The reason why I am satisfied that the Board received this fax on the afternoon of the 20th January is because on the 29th January, 1997, Mr. Graves’ solicitors received a letter from the Board returning the original notice of appeal together with the copy of it sent by fax on the afternoon of the 20th and the covering letter and the fax transmission cover sheet, all of which bore the date stamp of the Board of the 20th January, 1997. The letter from the Board which accompanied all those documents was in the following terms:
“Ronan Jermyn Daly
Solicitors 12 South Mall
Cork
29 Jan 1997
Appeal re Hostel and Treatment Plant, Ballylickey, Bantry, Co. Cork
Dear Sirs
An Bord Pleanala has received your letter in which you intended to make an appeal under the Local Government (Planning and Development) Act, 1992. Section 4 (5) (b) of the Act of 1992, provides that an appeal shall be made by leaving the appeal with an employee of the Board at the offices of the Board during office hours. The office hours of the Board are 9.15 a.m. to 5.30 p.m. Monday to Friday inclusive, except for public holidays and Good Friday.
As your appeal was not received within office hours on the 20th January, 1997 it is regretted that it must, therefore, be regarded as invalid. To lodge a valid appeal you must comply with ALL of the requirements of Section 4.
The documents lodged by you and a cheque for the money lodged are enclosed.
Yours faithfully
Pierce Dillon
Executive Officer.”
A cheque for £100 was enclosed. It is in respect of this refusal by the Board to accept his appeal that Mr. Graves seeks this judicial review. He was given leave to make such application by Shanley J. on the 7th April, 1997. The relief sought is an order of certiorari to quash the decision of the Board communicated to the applicant by the letter of the 29th January, 1997, whereby it determined that the appeal was invalid.
In essence he says that having regard to the factual position which I have already outlined, he complied with all of the necessary statutory provisions and in taking the view of the matter which it did the Board misdirected itself in law. He furthermore alleges that by reason of the Board’s failure to respond to his fax message of the afternoon of the 20th January, 1997, it is estopped from now contending that the appeal is invalid. In order to understand these submissions it is necessary that I now set forth the relevant statutory provisions.
The statutory provisions
Section 4 of the Local Government (Planning and Development) Act, 1992 sets out the provisions which apply to the making of appeals to the Board. It reads as follows:
“4. (1) An appeal shall
(a) be made in writing,
(b) state the name and address of the appellant,
(c) state the subject matter of the appeal,
(d) state in full the grounds of appeal and the reasons, considerations and arguments on which they are based, and
(e) be accompanied by such fee (if any) as may be payable in respect of such appeal in accordance with regulations under section 10 of the Act of 1982.
(2) (a) An appeal which does not comply with the requirements of subsection (1) shall be invalid.
(b) The requirement of subsection (1) (d) shall apply whether or not the appellant requests, or proposes to request, in accordance with section 12, an oral hearing of the appeal.
(3) Without prejudice to section 9, an appellant shall not be entitled to elaborate in writing upon, or make further submissions in writing in relation to, the grounds 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 or are received by the Board shall not be considered by it.
(4) (a) An appeal shall be accompanied by such documents, particulars or other information relating to the appeal as the appellant considers necessary or appropriate.
(b) Without prejudice to section 10, the Board shall not consider any documents, particulars or other information submitted by an appellant other than the documents, particulars or other information which accompanied the appeal.
(5) An appeal shall be made
(a) by sending the appeal by prepaid post to the Board, or
(b) by leaving the appeal with an employee of the Board at the offices of the Board during office hours, or (c) by such other means as may be prescribed.”
The period of one month for the making of an appeal is prescribed under s. 26, sub-s. 5 of the Local Government (Planning and Development) Act, 1963, as amended. It is s. 17 of the Act of 1992 that I must concern myself with on this application. Insofar as it is relevant, it provides at sub-s. (b) as follows:
“Where the last day of the appropriate period within the meaning of the said section 26 (5) is a Saturday, a Sunday, a public holiday (within the meaning of the Holidays (Employees) Act, 1973) or any other day on which the offices of the Board are closed, an appeal shall, notwithstanding paragraph (a), be valid as having been made in time if received by the Board on the next following day on which the offices of the Board are open.”
It is pertinent to point out that there is no statutory definition of the phrase “office hours” as used in s. 4 of the Act of 1992. However, the Board has set the hours as being between 9.15 a.m. and 5.30 p.m. from Monday to Friday excluding public holidays and Good Friday. Notice to that effect was published in the national newspapers in July, 1992 and notices to that effect are situate in the entrance lobby and lift of the building in which the Board’s premises are situated. In addition the Department of the Environment has published a leaflet entitled “Making a Planning Appeal” in which those hours are clearly set out at para. 3 thereof. A copy of that leaflet containing, inter alia, this information was furnished to Mr. Graves’ solicitors by the Council as part of the documents sent along with the decision against which Mr. Graves wished to appeal.
The applicant’s first submission
Mr. Graves accepts that in order to make a valid appeal to the Board there must be compliance with the provisions of s. 4 of the Act of 1992. The only part of that section with which this application is concerned is s. 4, sub-s. 5 (b). That is because Mr. Graves chose to make his appeal to the Board by the method there prescribed. He did not seek to make his appeal by post nor by any other means prescribed. It is accepted that in purporting to comply with the provisions of s. 4, sub-s. 5 (b) neither Mr. Graves nor his agents left the appeal with an employee of the Board at the offices of the Board. But he says the statute does not require that an appellant or an appellant’s agent should do so. He argues that once somebody leaves an appeal with an employee of the Board at the Board’s offices during office hours, the statutory provisions have been complied with. In the present case it is conceded by the Board that one of its employees came into possession of the appeal on Monday the 20th January at the Board’s offices during office hours. Because of the existence of s. 17, sub-s. 1 (b) of the Act of 1992, Monday the 20th, being the next following day on which the offices of the Board were open, this rendered valid the appeal. Mr. Graves’ counsel accepts that the modus operandi adopted in this case was fraught with danger and were it not for the concession made by the Board concerning receipt of the appeal on Monday, the 20th January, 1997, he would be unable to press this aspect of his case.
Counsel for the Board, on the other hand, whilst making the concession in question, says that it is of no assistance to Mr. Graves. He says that the appeal procedure which is prescribed under s. 4 must be complied with strictly. This is so, inter alia, because of the rights of third parties which may be affected by the bringing of an appeal and the necessity to have certainty in relation to the matter. In the present case Mr. Graves accepts that he cannot prove that the appeal in question was left with an employee of the Board at the offices of the Board. In fact the contrary is the case. The appeal was left with somebody who was not an employee. Such being so, the appeal was not validly made.
I have come to the conclusion that the submissions of the Board in this regard are correct. The wording of s. 4, sub-s. 5 of the Act of 1992 is in mandatory terms. It requires that an appeal be left with an employee of the Board at the offices of the Board. It appears to me that an appellant who wishes to argue that he has made a valid appeal would have to be able to demonstrate compliance with the statutory provisions. Mr. Graves does not have the ability to so argue in the present case. By a mix of good fortune and a concession made by the Board, he has been able to demonstrate that his appeal came into the possession of an employee of the Board during office hours on Monday the 20th January, 1997. But he cannot prove that the appeal was left with an employee of the Board at the offices of the Board on the day in question. The fact that an employee of the Board came into possession of the documents on the 20th January, 1997, does not appear to me to discharge the obligation of the appellant to demonstrate compliance with the mandatory requirements of s. 4, sub-section 5 (b). It seems to me that the legislature in enacting s. 4, sub-s. 5 (b) prescribed very carefully 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 at the offices of the Board. Rather it required that the appeal be left with an employee of the Board. An employee of the Board must have the appeal document left with him or her personally in order for the appeal to be valid. The mere fact that such an employee fortuitously comes into possession of appeal documents does not, in my view, discharge the onus cast upon an appellant who wishes to make a valid appeal if such appellant chooses the method of service prescribed under s. 4, sub-s. 5 (b) of the Act of 1992. To permit of a departure from that procedure would not merely run counter to the statutory provisions but would, in my view, introduce an element of uncertainty into a procedure which must be construed strictly and rigidly so as to ensure certainty and the protection of third party rights. Accordingly, I reject this first submission made on behalf of Mr. Graves.
The second submission
This submission concerns the construction to be give to s. 17, sub-s. 1 (b) of the Act of 1992. Counsel for Mr. Graves says that the plain wording of this section means that if the final day for the making of a valid appeal happens to be a Saturday, a Sunday, a public holiday or any other day on which the offices of the Board are closed, then an appeal is to be regarded as valid if received by the Board on the next following day on which the offices of the Board are open. He says that in the present case there can be no doubt but that the appeal was received by the Board on Monday the 20th January, 1997. That is undoubtedly the case. He says, therefore, that there was compliance with the provisions of s. 17, sub-s. 1 (b) of the Act of 1992 and therefore his appeal is valid.
Whilst this submission has an initial attraction about it, it does not stand up to close examination. If it were correct it would mean that an appellant whose last day for making an appeal happened to be one on which the Board’s offices were not open would have an advantage over an appellant who was not so favoured. The former would merely have to demonstrate receipt by the Board whilst the latter would have to prove compliance with the provisions of s. 4, sub-section 5 (b). Not only that, but because s. 17, sub-s. 1 (b) does not contain any stipulation concerning the time at which receipt of the appeal documents must occur, the receipt could take place at any time up to midnight on such a day.
I do not accept that this is the proper construction of s. 17, sub-section 1 (b). First, I am of opinion that the procedure which must be followed in order to make a valid appeal is that which is prescribed in s. 4 of the Act of 1992. Section 17, sub-s. 1 (b) does not in any way modify that procedure. It merely extends the period in which that procedure can be complied with. Secondly, I am fortified in this view by the very wording of s. 17, sub-s. 1 (b) itself. It makes it clear that the saver which is provided there only has the effect of rendering valid “as having been made in time”an appeal which would otherwise be invalid because of the expiry of the one month time limit on a day on which the offices of the Board were closed. Section 17, sub-s. 1 (b) does not purport to validate any other element of an appeal. Therefore a failure to comply with the mandatory provisions of s. 4 cannot be cured by reliance on s. 17, sub-section 1 (b). The only issue that is addressed by s. 17, sub-s. 1 (b) is that of time.
Thirdly, in my view the construction which is sought to be placed upon the wording of s. 17, sub-s. 1 (b) would give rise to a manifestly absurd and unjust result which could not have been the intention of the legislature. By the expiration of the time limited for appeal occurring on a day on which the offices of the Board were closed, an appellant would be relieved of compliance with the requirements of s. 4 and would be permitted to make a valid appeal at any time on the next following day on which the offices of the Board were open. He could therefore do so up to midnight on such a day. This, in my view, would place him at a considerable advantage over an appellant whose time limit for appeal did not occur on one of the days on which the offices of the Board were closed. Not only that, but it would give rise to the sort of uncertainty which the provisions of s. 4 are designed to obviate. Indeed, it could even give rise to abuse for who is to say whether a document was left at the offices of the Board at a minute to or a minute past midnight on the relevant date?
Accordingly, in my view, this argument also fails.
The third submission
The final submission which is made is that by reason of the Board’s failure to reply to the fax which was sent to it on the afternoon of the 20th January, 1997, it is now estopped from denying the validity of the appeal. It is said that had Mr. Graves’ solicitors been informed that the Board was not going to treat the appeal as a valid one, he would have taken further steps to ensure that the letter of appeal together with the appropriate fee would be resubmitted to the Board prior to closing time on the 20th January, 1997. I do not accept that the Board was under any obligation to respond to the fax which it received on the 20th January, 1997, prior to closing time on that date. The fax was sent shortly before 4 p.m. on that date thereby leaving the Board with a period of about ninety minutes in which to respond. I do not think that that was reasonable in the circumstances.
Even if it was, I am of opinion that the failure on the part of the Board to make its views known to Mr. Graves’ solicitors prior to closing time on the 20th January, 1997, did not give rise to an estoppel preventing it from now denying the validity of the appeal.
For the reasons which I have already set forth, I refuse the reliefs which are claimed.
In my view the Board was not wrong in law in rejecting Mr. Graves’ appeal.
This application is dismissed.
Francis Terence McCann v An Bord Pleanála
and Sligo County Council (notice party)
1995 No. 257 JR
High Court
Time Limits
20 June 1996
[1997] 1 I.L.R.M. 314
(Lavan J)
LAVAN J
delivered his judgment on 20 June 1996 saying: This is an application for leave to apply by way of judicial review for an order of certiorari quashing the decision of An Bord Pleanála (the respondent) declining to hear an appeal by the applicant against certain conditions in a planning permission, and an order of mandamus compelling the respondent to hear and determine the said planning appeal. Under the provisions of s. 82(3B) of the Local Government (Planning and Development) Act 1963 (inserted by s. 19(3) of the 1992 Act), leave to apply for judicial review will not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. The point on which the respondent’s decision is being challenged is a net one: when does the time limit for appealing a planning authority’s decision to An Bord Pleanála expire? This question turns on the interpretation of the term ‘month’.
Background
The applicant had applied for planning permission for certain development namely the retention of a new entrance and road to his reconstructed house at Barnaribbon, Co. Sligo. The planning authority made a decision to grant permission on 7 June 1995. An appeal against certain conditions attached to this decision was received by the respondent on 7 July 1995. The respondent subsequently returned the appeal documentation and fee to the applicant by letter dated 25 August 1995, stating that the purported appeal must be regarded as invalid as not having been made in time. It is this decision of the respondent which the applicant now wishes to challenge. It appears from the appeal documents that the applicant’s agents incorrectly stated the date of the planning decision as 8 June 1995 and that the respondent was only disabused of this belief on examination of the documents received from the planning authority.
Relevant statutory provisions
S. 26(5) of the Local Government (Planning and Development) Act 1963 as substituted by s. 3 of the 1992 Act provides:
(a) Any person may, at any time before the expiration of the appropriate period, appeal to the board against a decision of a planning authority under this section.
…
*317
(f) In paragraph (a) of this subsection ‘the appropriate period’ means the period of one month beginning on the day of the giving of the decision of the planning authority.
S. 17(1) of the Local Government (Planning and Development) Act 1992 provides:
(a) Subject to paragraph (b), the provisions of s. 26(5) of the Principal Act authorising appeals to be made before the expiration of the appropriate period within the meaning of that subsection shall be construed as including a provision that an appeal received by the board after the expiration of the appropriate period shall be invalid as not having been made in time.
S. 11 of the Interpretation Act 1937 provides:
(h) Periods of time . Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period.
Legal submissions
The applicant’s case is that the respondent erred in law in its interpretation of the statutory time limits provided for the bringing of planning appeals. It is submitted on his behalf that the ‘corresponding date’ rule applies: the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of the month that bears the same number as the day of the earlier month on which the decision was made. Reliance is placed on the House of Lords decision in Dodds v. Walker [1981] 2 All ER 609. I was also referred to the judgment of Flood J in Max Developments Ltd v. An Bord Pleanála [1994] 2 IR 121 where he observedobiter, in the context of the making of an application for judicial review, that the relevant two month time limit ran from 25 May 1993 to 25 July 1993 i.e. the corresponding date. Conversely, the respondent seeks to rebut these submissions by reference to the Interpretation Act 1937. It is submitted that the ‘corresponding date’ rule does not apply by virtue of the provisions of s. 11(h) of that Act; the ‘corresponding date’ rule is premised on the exclusion of the day on which the event occurred in reckoning the time limit whereas s. 11(h) states that where a period of time is expressed to begin on or be reckoned from a particular day, that day, shall, unless the contrary intention appears, be deemed to be included in such period. Counsel for the respondent also relies on the decision of McMahon J in McGuinness v. Armstrong Patents Ltd [1980] IR 289, where s. 11(h) was held to create a difference between the English and Irish law with respect to the calculation of limitation periods.
*318
Decision
I am satisfied that the submissions made on behalf of the respondent are correct. A ‘month’ means a ‘calendar month’: Schedule 19, Interpretation Act 1937. The ‘corresponding date’ rule does not apply in this instance by virtue of s. 11(h) of the Interpretation Act 1937. I am confirmed in this opinion by the irresistible logic of the contention, urged by counsel for the respondent, that a calendar month cannot include two days of the same date i.e. it cannot include both 7 June 1995 and 7 July 1995. I prefer the reasoning of McGuinness v. Armstrong Patents Ltd to Max Developments Ltd v. An Bord Pleanála; the comments in the latter case were strictly obiter and, in any event, it may be difficult to reconcile that decision with the subsequent Supreme Court decision in K.S.K. Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128; [1994] 2 ILRM 1. In light of the decision I have reached on the primary issue in this case, it is now necessary to consider certain subsidiary arguments made by the applicant. It is submitted that in this case there has been substantial compliance with the terms of the Acts, in that any delay involved was minimal and that, in these circumstances, there would be no conceivable prejudice to the respondent in requiring it to determine the appeal. This submission requires the consideration of two allied issues:
(i) whether the time limit with respect to appeals is mandatory or directory; and
(ii) if mandatory, whether or not there has been substantial compliance with its requirements?
The distinction between directory and mandatory requirements is well established in Irish law and, in particular, has been considered in a number of planning cases concerning the requirements for a valid planning application. The determination of whether a particular requirement is mandatory or not is a question of statutory interpretation; perHenchy J in State (Elm Developments) v. An Bord Pleanála [1981] ILRM 108 at p. 110:
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.
With respect to the requirement as to the time limits for planning appeals, the *319 statutory intendment is expressly stated in s. 17(1)(a) of the Local Government (Planning and Development) Act 1992: an appeal received by the board after the expiration of the appropriate period shall be invalid as not having been made in time. Although it may be idle to speculate as to whether the time limit would be a mandatory requirement in the absence of the express provisions of s. 17(1)(a), I am satisfied that the requirement would still have to be regarded as mandatory and I adopt the reasoning of Henchy J in State (Elm Developments) v. An Bord Pleanála at p. 111:
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.
As to whether strict compliance with a mandatory requirement may ever be waived, counsel for the applicant relies by analogy on the Supreme Court decision in Veterinary Council v. Corr [1953] IR 12. This case concerned the procedure prescribed for the making of a case stated. The relevant legislation required that an appellant ‘at or before the time’ when he transmits the case to the High Court, send notice in writing of the fact that the case has been stated on his application, together with a copy of the case to the other party. On the facts, the notice and the copy of the case stated did not reach the other party until the day following the transmission of the case stated to the High Court. The Supreme Court, nevertheless, held that there had been sufficient compliance with the requirements of the subsection. I am satisfied, however, that the decision in Veterinary Council v. Corr may be distinguished from the present case. The requirements in that case were somewhat convoluted and, accordingly, it was possible to achieve compliance which was substantial but nonetheless incomplete. In the present case, the planning appeal was either made in time or was not made in time; the requirements are not in any way staggered as in Corr. Henchy J in Monaghan Urban District Council v. Alf-a-Bet Promotions Ltd [1980] ILRM 64 identified a de minimus rule and a test of substantial compliance whereby only trivial, technical or peripheral deviations from a mandatory requirement may be excused. In my opinion, the appeal in this case was not made in time nor can this be regarded as a mere technical breach: s. 26(9) (as amended) of the Local Government (Planning and Development) Act 1963 provides that the planning authority shall make the grant of planning permission after the expiration of the period for appealing has expired and thus the need for certainty in this area is vital.
Finally, counsel for the applicant invokes the applicant’s right of access to the appeal mechanism, arguing that the effect of the time limit is to curtail access *320 to the appeal process and, ultimately, to the courts. These considerations, it is further submitted, should encourage the court to resolve any ambiguity as to the interpretation of the term ‘month’ in favour of upholding the applicant’s rights. There is a certain attractiveness in these propositions. Without deciding that the right to appeal a planning decision is akin to any constitutionally protected right of access to the courts, I must be mindful of the fact that failure to exercise a right of appeal may have implications for access to the courts. For example, in State (Abenglen Properties Ltd) v. Dublin Corporation [1984] IR 381; [1982] ILRM 590, the Supreme Court found that the failure, in the circumstances, to exhaust the statutory right of appeal to An Bord Pleanála was fatal to an application for judicial review. It may also be that the absence of certain of the requirements of natural justice, such as the omission of any opportunity for an oral hearing and the fact that an applicant is not informed of the planning authority’s proposed decision in order that he might make representations thereto, from the planning authority stage of the planning decision, may well only be acceptable because of the existence of a right of appeal, whereby any defects may be cured. However, despite these considerations, I remain satisfied that the interpretation of the time limit cannot be based on the ‘corresponding date’ rule. There in no ambiguity in the term ‘month’ which can be resolved in favour of the applicant. The term is clear. The imposition of rigid time periods for appealing is an attempt by the legislature to balance the interests of the developers and the public with the need for certainty. Such strict deadlines may on occasion cause hardship but such is the price of certainty. This is equally the case with the provisions for default planning permissions; third parties may well be prejudiced. But the time limits in this case do not serve to work an injustice. This is not a case where the applicant’s failure to exercise his right of appeal was the result of ignorance of his right or of the time constraints involved. The decision of the planning authority to grant permission was endorsed with details as to the appeal process. Thus, the present case is clearly distinguishable, for example, from the decision of the High Court in Brady v. Donegal County Council [1989] ILRM 282.
In conclusion, I hold that the applicant has failed to establish that there are any substantial grounds for contending that the respondent’s decision is invalid or ought to be quashed and accordingly, leave to seek judicial review is refused.
Weston -v- An Bord Pleanala
[2008] IEHC 71
Cite as: [2008] 2 ILRM 542, [2008] IEHC 71
Judgment of Mr. Justice John MacMenamin dated the 14th day of March, 2008.
1. The applicant is a registered company with unlimited liability. It has its registered office at Weston Aerodrome, Leixlip, County Dublin. It is the owner and operator of a licensed aerodrome there.
Background
2. In these proceedings the applicant (‘Weston’) seeks to challenge an imposition by An Bord Pleanála (‘the Board’) of a condition imposed on a decision to grant planning permission. Weston alleges that the condition which has been imposed is unlawful and seeks orders removing such condition from the grant of planning permission.
3. On or about 5th May, 2005 Weston made a planning application to South Dublin County Council (‘the County Council’) for a retention in respect of the following development: revision, alteration and retention to approved office/clubhouse, hangar and car park at Weston Aerodrome, Lucan, County Dublin.
4. The development in respect of which retention planning permission was sought consisted in what is described as a “non-airside” development. Its purpose was to allow air traffic controllers in the control tower sited on top of the “clubhouse” to have a full view of the runway and taxiways. The project consisted in (a) a relocation of the control tower from a central position on the roof of the office/clubhouse to the front elevation of that building, with reduced size of the display and visual part of the control tower, and a slight increase in height; (b) a consequential relocation and retention of navigational aid equipment from the control tower to two storage areas internally under the control tower, to be achieved by lowering the ceiling height of the first floor by 1.945 metres; (c) the relocation and retention of a lift shaft internally, thereby avoiding direct entry to the control tower; the height of the lift shaft to be increased by 1.45 metres; (d) the incorporation of necessary security arrangements by change of user of the ground floor by the provision of office accommodation and reception at ground floor, a slight increase in the bar area, and a reduction in office space at first floor; (e) the proposed use of unroofed areas behind the perimeter parapet walling for air handling units and ventilation equipment; (f) the retention of folding doors at the rear of a hangar.
5. In Weston’s grounding affidavit, Mr James Mansfield, one of the directors of the company, states that the retention, revision and alteration was necessitated so as to ensure a clear view from the control tower; to ensure that the lift did not terminate at the control tower itself (a security consideration); and (with reference to the hangar) the retention of folding doors at the rear and its division into three units so as to reduce the fire risk to aircraft placed there. Consequently, a car park at the rear of the hangar was to be relocated and an apron provided.
6. In response to the application on 29th June, 2005 the County Council as planning authority, issued a notification of a decision to grant permission and retention for the development subject to a number of specified conditions, the reasons for which were set out in a schedule. Weston took no exception to three conditions or to the reasons which are set out therefor. They are material only by way of context, and possible contrast with that impugned.
7. Each such condition was justified by an attendant and specified reason; respectively, to ensure that the development was in accordance with the permission, in the interests of public health and the assurance of adequate draining. The meaning and effect of all those stated reasons were, in their context, entirely clear.
However, Weston claims that condition No. 4 falls into a different category.
8. The condition itself, closely reflected in the ultimate decision of the Board on appeal provides:
“4. Development described in Class 32 of Part 1 of Schedule 2 of Planning and Development Regulations, 2001 as amended, shall not be carried out on the lands at Weston Aerodrome within the administration of South Dublin County Council without a prior grant of planning permission from the planning authority or from An Bord Pleanála on appeal.”
The only reason for this condition is stated to be “in the interest of orderly development”. Weston states that the effect of such condition, if upheld, would be to negate a more general type of exemption for the development of ‘aerodromes’, (a term more redolent of the nineteen thirties than today) thereby rendering it susceptible to ordinary planning processes and stifling the further development of Weston. A further condition imposed by South Dublin County Council sought to restrain increases in aircraft movements, training exercises or any material change in the type or capacity of existing aircraft using the aerodrome. It stipulated that any material increase or change should be the subject of a separate planning permission. The reason for this condition was fully described and included the requirement that there should be full assessment of consequences that might arise from increase or change in the existing use of the aerodrome. Thus the reason for this condition was clearly justified and explained by the County Council.
9. The decision of the County Council was the subject of a third party appeal to the Board. This appeal was taken by an unincorporated association, ‘Combined Action on Weston Aerodrome’. Ultimately, on 20th December, 2005, the Board granted planning permission, subject however to a condition slightly amended from that imposed by the County Council.
“Development described in Class 32 of Part I of Schedule 2 to the Planning and Development Regulations, 2001,as amended, shall not be carried out on the site area without a prior grant of planning permission.”
The stated reason was, simply repeated “in the interest of orderly development”. Two other conditions imposed are immaterial. This condition and the stated reason therefor is now challenged.
10. By way of background, the prior relationship between the applicant and the respondent has been a chequered one, surrounded by much controversy and no little friction. Ultimately, after its acquisition by Mr. Mansfield’s company, Weston has had the benefit of a number of more recent planning permissions in the last decade or so, added to a long established right to use the lands for the purpose of a licensed aerodrome since 1939. Substantial development contested on many quarters has taken place since the Mansfield interests purchase.
11. Weston contends that the effect of the condition now in suit would be to inhibit immediate response to what could be regarded as safety and security issues, including security fencing or alterations to taxiways or aprons which might be requested by the Irish Aviation Authority; and that it is unreasonable to remove or negate the effect of an exemption under the 2001 Regulations as a more immediate response may be required having regard to the nature of an aerodrome. The rationale for the general exemption provided for by the Minister as an exception to the Planning Act, 2000 is to allow for rapid and less inhibited development works at airports developed as part of the State infrastructure.
12. In order to place this contention in context it is necessary first to consider the general ambit of the Planning Act of 2000 with regard to exemptions, and second to consider the specific exemption to which this application relates. The attack on the decision is mounted on three fronts; vires, the duty to give reasons, and proportionality.
(i) Are the conditions and the Regulations under which it is made ultra vires?
Statutory provisions
13. The principal categories of development exempted from the requirement to obtain planning permission are set out in s. 4 of the Planning and Development Act, 2000. The relevant provision, s. 4(2), states that:
“(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—
(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or
(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).
(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.
(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.” (emphasis added)
The section and others are quoted as context in an integral element of interpretation.
14. Section 4(3) provides that references in the Act to “exempted development” are to include development so classified by the Minister pursuant to s. 4(2).
15. It can be seen from these provisions that the Oireachtas envisaged that the Minister might draw up regulations to designate certain classes of development as exempted development and that such classes, by virtue of the terms of the Act itself would not require planning permission. But the Oireachtas clearly also envisaged that by the insertion of s. 4(2)(b), the Minister would have jurisdiction to impose a condition as regards the extent of the exemption. Does this preclude the planning authorities from doing so?
16. The classes of exempted development are found primarily in the Planning and Development Regulations, 2001. Part I of Schedule 2 of the Regulations sets out 55 classes of exempted development. The class of development is described in ‘column 1’; the corresponding limitations and conditions on such exemption are set out in ‘column 2’. By virtue of article 6(1) of the Regulations –
“Subject to article 9 development of a class specified in column 1 of Part I of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part I opposite the mention of that class in the said column.”
The exempted class
17. The applicant contends that the condition at issue in the within proceedings seeks to deny the applicant the benefit of the entire class of development set out in class 32 of Part I of Schedule 2. The exemption is defined in class 32 as:
The carrying out by any person to whom an aerodrome licence within the meaning of the Irish Aviation Authority (Aerodromes and Visual Ground Aids) Order, 1988 (No. 487 of 1998) has been granted, of development consisting of –
Description of Development Conditions & Limitations
(a) The construction or erection of (i) Where the building
an extension of an airport has not been extended previously
operational building within an the floor area of any such extension
airport. shall not exceed 500 square metres or 15% of the existing floor area, whichever is the lesser.
(ii) Where the building has been
extended previously, the floor area of any such extension, taken together with the floor area of any previous extension or extensions, shall not exceed 15% of the original floor area or 500 square metres, whichever is the lesser.
(iii) The planning authority for the area shall be notified in writing not less than four weeks before such development takes place.
(b) The construction, extension,
alteration or removal of aprons,
taxiways or airside roads used
for the movement of aircraft and
the distribution of vehicles and
equipment on the airside, within
an airport,
(c) The construction, erection or
alteration of visual navigation aids
on the ground including taxiing
guidance, signage, inset an
elevated airfield lighting or
apparatus necessary for the safe
navigation of aircraft, within an
airport.
(d) The construction, erection or
alteration of security fencing and
gates, security cameras and other
measures connected with the
security of airport infrastructure,
within an airport, or
(e) The erection or alteration of
directional, locational or warning
signs on the ground within an
airport.
18. Weston, as the holder of the requisite licence, contends that, from the express terms of class 32, and from the remainder of Schedule 2, it is clear that the Minister has not designated broad categories of exempted development in need of further refinement, but has instead designated specific types of development in respect of which he considers planning permission should not be required at all, and has built in conditions and limitations in relation to these. It is contended that the types of development in class 32 are quite specific in nature, are subject to conditions and limitations where the Minister considers it appropriate, and informed by a concern that development essential to security and safety at airports be carried out expeditiously without delays inherent in the planning process.
19. In the absence of an express power to do so, has the Board jurisdiction to “second guess” the Minister’s decision as to what is required, much less to deny the benefit of an exemption to the holder of an aerodrome licence? The Board says it has. It relies on a further article of the Planning and Development Regulations, 2001, as the basis for its jurisdiction to deny an applicant for permission the benefit of exempted development. The Board says the provisions as to exempted development are subject to article 9 of the Schedule.
20. Insofar as material, therefore, Article 9(1)(a)(i) provides:
“9(1) Development to which article 6 relates shall not be exempted development for the purposes of the Act –
(a) if the carrying out of the development would –
(i) contradict a condition attached to a permission under the Act or be inconsistent with any use specified in a condition under the Act.”
21. The Board relies on the phrase “contradict a condition” as providing it with the jurisdiction to “condition out” this otherwise exempted development.
22. Weston say the Board is impermissibly seeking to re-interpret primary legislation in the light of a provision contained in secondary legislation; that s. 4(2) of the Act of 2000 alone provides for the classes of exempted development and that the Board seeks to read into this primary legislation a qualification that development falling into a designated class of exempted development would nonetheless require planning permission where the Board so stipulates in a condition attached to a planning condition in relation to the same land.
23. Henchy J. in Frescati Estates v. Walker [1975] 1 I.R. 177 held that Regulations cannot be employed as a tool in interpreting the primary legislation under which they are made:
“Much of the necessary procedures laid down by Regulations made pursuant to the Act, but these I ignore in determining the scope of the Act. As Lord Diplock said in the context of another Act –
‘It is legitimate to use the Act as an aid to the construction of the Regulations. To do the converse is to put the cart before the horse.’ – Lawson v. Fox [1974 AC 803, 809’.”
24. Is the effect of the primary legislation that it is for the Minister to determine the conditions on which the exempted development is to be available? Does it require express language in the primary legislation before the respondent could be vested with a power to second guess the Minister in this regard?
25. Useful pointers to the resolution of these questions are to be found elsewhere in the Act. First, s 34(4) of the Act of 2000 enumerates seventeen types of conditions which planning authorities and An Bord Pleanála may lawfully impose. However, that sub-section includes no such condition as that imposed on Weston. Insofar as material the section provides:
“34-(1) Where –
a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it.” (emphasis added)
This then is a general power to impose conditions, subject to certain specified and identified circumstances as by sub-section (4) it is provided:
“Conditions under subsection (1) may, without prejudice to the generality of that subsection, include any of the following –
…” (emphasis added)
There follows a description of a number of specific conditions including:
“(b) conditions for requiring the carrying out of works (including the provision of facilities) which the planning authority considers are required for the purposes of the development authorised by the permission;”
Counsel for Weston, Mr. Garrett Simons S.C., forcefully submits that article 9, as secondary legislation, must trace its provenance to an identified antecedent power in the parent Act, that is the Act of 2000. It cannot be free standing.
26. To establish this statutory provenance one must look to the scheme and objectives of the Planning and Development Act, 2000 as a whole and to certain specific provisions.
27. The statutory intent stated in the preamble to the Act is to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; it is profoundly informed by the idea and concept of sustainable development which is central to its objectives. It is informed too by the guiding principles for sustainable spatial development of the European continent. The Act mandates development plans to state objectives for integrating the planning and sustainable development of an area with the “social, community and cultural requirements of the area and its population”. The objective to halt the deterioration of social capital is reflected in requirements to these objectives for providing community services (see generally Environmental and Land Use Law, Yvonne Scannell, Thomson Round Hall, 2006, Chapter 2 – 04). In general, this is to be achieved by the operation of the planning authorities. While the Minister is empowered to issue guidelines and objectives, s. 30 of the Act imposes a limitation on such Ministerial power in that the latter section provides that the Minister shall not exercise any power or control in relation to any particular case with which a planning authority or the Board is, or may be, concerned. Thus the primacy of a planning authority in dealing with each individual case (as opposed to a class) is statutorily enshrined.
28. Part III of the Act deals with the question of control of development. Section 32 provides:
“(1) Subject to the other provisions of this Act, permission shall be required under this Part – and
(a) in respect of any development of land, not being exempted development, and
(b) in the case of development which is unauthorised, for the retention of that unauthorised development.
(2) A person shall not carry out any development in respect of which permission is required by subsection (1), except under and in accordance with a permission granted under this Part.”
Thus the exception provided for in s. 32(1)(a) relates to a general obligation to obtain permission but subject to one exception, that is in the case of exempted development as provided for under s. 4 of the Act. But this is restricted to authorised developments as, in the case of an unauthorised development, the exemption does not apply; it is necessary that an applicant re-apply for retention. Thus, the Act provides for a heightened level of scrutiny by the planning authority in the case of an unauthorised development which (as here) is the subject matter of a retention application. The rationale is obvious. It is to ensure that unauthorised development cannot be achieved by the ‘back door’. Under sub-section (2), no development at all is permitted in respect of a development where permission is required except under and in accordance with permission granted under Part III of the Act. The primary supervisory role of the authorities in individual cases is clear, it is enhanced in retention applications.
29. The general power granted to a planning authority pursuant to s. 34 is either to grant or refuse a permission or to impose conditions. Under sub-section (2) of the section there are identified a number of different considerations to which the authority must have regard when making a decision in relation to an application under the section. The considerations which the County Council planning inspector has to take into account in dealing with a retention permission are set out in s. 34(2) of the Act and includes:
“(vi) Any other relevant provision or requirement of this Act and any Regulation made thereunder.”
30. By virtue of s. 34(4) of the Act, seventeen specified circumstances are outlined where conditions may be imposed without prejudice to the generality of s. 34(1). But this must not detract from the general power to impose conditions cited at paragraph 21 of above.
31. It is true that in Ashbourne Holdings v. An Bord Pleanála [2003] 2 IR 114, decided under the earlier Act of 1963, the Supreme Court held that a planning authority may not rely on its broad discretion under the equivalent section to s. 34(1) to justify imposing a more severe restriction on the applicant than one expressly permissible under the equivalent to s. 34(4); i.e. the specified conditions.
32. In The State (FHP Limited) v An Bord Pleanála [1987] I.R. 698 at 711, McCarthy J. pointed out that general wording in the precursor provision of s. 34(1) and (4) of the Act of 2000 could not be relied upon to validate stricter conditions because such a power would require “statutory expression in the clearest terms”. But these authorities relate to specified circumstances, not the general power to impose conditions not statutorily identified. In The State (Abenglen Properties Limited) v. An Bord Pleanála [1984] I.R. 381, Walsh J. observed obiter that the conditions imposed under the equivalent to s. 34(1) should be of the same nature as those referred to in the equivalent to s. 34(4). However, in Ashbourne (where Abenglen is not referred to in the judgment) speaking on behalf of the court, Hardiman J. specifically held (as part of the ratio decidendi), that a condition under s. 34(1) could be imposed even if it were not within the scope of the specific conditions identified under s. 34(4). He observed in relation to the precursor of s. 34, that is s. 26 of the Act of 1963:
“The structure of s. 26, then, is that a general power to impose conditions is subject to a general restriction. This, insofar as relevant here, is to consider only the proper planning and development of the area and in doing so to have regard to the matters set out in sub-section (2) of the section.”
But he continued:
“This in turn provides that the conditions which may be imposed on a permission under sub-section (1) ‘may without prejudice to the generality of that sub-section’, include the conditions then set out. This list includes conditions relating to a large number of specific circumstances. …”
He added:
“There is no doubt that the general words of sub-section (1) would permit the imposition of an otherwise proper condition even if it were outside the scope of any of the sub-paragraphs of sub-section (2). That is the effect of the ‘without prejudice’ provision.” (emphasis added)
He concluded:
“But when a proposed condition is within the scope of any part of sub-section (2) then by reason of the last phrase in sub-section (1), the planning authority or Board must have regard to the relevant part …”
It is inconceivable that Abenglen was not cited in the course of argument in Ashbourne. Thus, I consider Ashbourne as the more authoritative on the point. Provided that the condition lies outwith the scope of any specified condition, it may, subject to the objectives of the Act and rational justification, be imposed.
33. None of the identified seventeen specific conditions which might be imposed arise here. Consequently, and absent such specification, I conclude that the power to impose a ‘non-specified’ condition lawfully exercised by the Board through the Regulations outlined earlier, is one authorised by the general power vested in the Board pursuant to s. 34(1) and (4) of the Act of 2000. The key phrase, or image, contained in s. 26 of the Act of 1963, mirrored in Ashbourne and again reflected in s. 34 is the general power: “without prejudice to the generality” of sub-s. (1). Unless the power exercised comes within the scope of any one of the seventeen specified circumstances (when it will require to be strictly construed), the power otherwise, and the jurisdiction vested, is a ‘general’ one, provided it is lawfully and rationally imposed in the interests of proper planning and sustainable development. Thus, such a condition to be justified in law must rationally accord with the stated objectives of proper planning and sustainable development. I consider that the condition is in accordance with these objectives.
34. The position here is not that the planning authority is “second guessing” the Minister who granted an exemption a case of certain categories of development; rather the authority is properly exercising a power vested in it by statute in relation to the retention of an unauthorised development as provided for under s. 32(2) cited above.
35. As a guide in the process of interpretation sub-s. 12 of s. 34 is also of some assistance. It provides:
“12. An application for development of land in accordance with the permission regulations may be made for the retention of unauthorised development and this section shall apply to such an application, subject to any necessary modifications.”
36. “Permission Regulations” are defined in s. 2 of the Act as regulations made pursuant to s. 33. There is no question that the application was made in accordance with the permission regulations. The “necessary modifications” are that the words “permission for retention of unauthorised development” should be read wherever the words “permission for development” occur in s. 34 of the Act. When one takes the provisions of all of ss. 32 and 34 together, the intent of the Oireachtas is clear: that is in the case of a retention permission, conditions may be imposed even in the circumstances of an exempted development. The Act contains no provision which would indicate to any contrary interest or effect. (See s. 5 of the Interpretation Act, 2005.)
Thus, taking these reasons together, the challenge on vires must fail.
Failure to provide reasons
37. It is necessary next to consider the second aspect of the applicant’s case, a challenge based on a failure to provide reasons for the condition. The reason ultimately furnished by the Board, it will be recollected, was “in the interest of orderly development”.
38. Section 34(10)(a) of the Act of 2000 expressly requires the planning authority or An Bord Pleanála to give reasons for the imposition of any condition in relation to the grant of planning permission:-
“(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.”
39. It has been submitted that, pursuant to s. 34(2)(vi) the County Council inspector noted the application was for retention and considered this relevant. Pursuant to this provision, one of the considerations which must be taken into account is:-
“(vi) any other relevant provision or requirement of this Act or any regulation made thereunder.”
Ultimately, in the assessment of the retention permission the Board concluded that generally, the permission would not injure the amenities of the area or of property in the vicinity. This basis was different from that of the inspector who had stated that in the context of the greenbelt zoning of the area and established use retention of the development would be acceptable in usual terms and within the character of the area. Thus, with regard to the “reasons and considerations” for the retention permission itself, the Board and the inspector arrived at different reasons.
40. For conditions, however, the position is different. It is necessary only to provide “reasons”. It is not necessary for the Board to set out in detail the matters it concluded.
41. The condition imposed in the instant case was not one of those seventeen described in s. 34(4). In such circumstance, that is in reliance on the general power, and in order to establish vires within the objectives of the Act, I consider that the respondent was under an enhanced obligation to state the “main reasons” for the decision. This obligation is derived from the necessity to ensure that the condition imposed is within the four walls of the Act as a whole. For a permission or retention there must be both “a statement of the main reasons but also the considerations upon which the decision in question is based” per Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2006] 1 IR 453 I.L.R.M. 287. Here, in the case of a condition, the requirement is by contrast to state simply the main reasons but not considerations. This does not detract from the requirement that the rationale for the condition must be explicit.
42. In O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, 759: Murphy J. stated:
“It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of his deliberations but on the other hand the need for providing the grounds of the decision as outlined by the Chief Justice could not be satisfied by recourse to an uninformative if technically correct formula. For example it would hardly be regarded as acceptable for the Board to reverse the decision of a planning authority stating only that ‘they considered the application to accord with the proper planning and development of the authority’.”
43. In Mulholland v. An Bord Pleanála (No. 2) [2006] 1 IR 453; [2006] 1 ILRM 287 Kelly J. summarised the test to be applied to assess whether a statement of reasons and (in that case) of considerations was adequate as follows:
“The statement […] must therefore 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 himself for such hearing or review,
(3) know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider, and
(4) enable the courts to renew the decision.”
While this test was enunciated in the context of a leave application and on different facts, it has since been cited with approval in the context of a substantive judicial review in Grealish v. An Bord Pleanála The High Court, Unreported, O’Neill J., 24th October, 2006.
44. In South Bucks. District Council & Anor. v. Porter (No. 2) [2004] 1 W.L.R., Lord Brown of Eaton-under-Heywood observed in the context of the obligation to provide reasons for a condition:-
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse influence will not readily be drawn.” (emphasis added)
He added, however:
“A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
This latter observation, however, must be seen in the context of the necessity to ensure, as Murphy J. observed, that the courts in exercising their supervisory review jurisdiction will be clear as to the basis upon which the decision was made.
45. The excerpt from the decision in the South Bucks. case has been italicised and emphasised for a particular reason in the context of the facts of this case. There should be no scope for significant doubt of law fairness or rationality.
46. For the purposes of its deliberation the Board had before it its inspector’s report. In the report the Board’s inspector gives as his basis for the recommended condition a reason identical to that ultimately given by the Board itself, namely “in the interests of orderly development”. But at an earlier point the inspector goes slightly further, in that, after citing the equivalent condition in the planning authority’s decision he states:
“The Board may wish to consider this issue further, however, I have included a similar condition in my recommendation as I consider that such condition is (a) relevant to the development permitted and (b) reasonable given the context that the application relates to an application for a retention.” (emphasis added)
It cannot be denied that this latter observation is somewhat Delphic. At one level it is a simple statement of fact. But it must be seen in the light of a concern, expressed by Weston that in the context of the previous history between the parties it might be interpreted as an indication that in the circumstances it might be legitimate to withdraw the benefit of the planning exemption as some form of sanction or “punishment”.
47. Such apprehension would not be entirely without evidential support. Before South Dublin County Council, the planning authority, there was at p. 7 a “record of executive business and manager’s order” the statement:
“The proposed development is considered to be acceptable and should now therefore be granted permission. A condition preventing any further development without planning permission and extinguishing the applicant’s exemption rights on the land holding should be included in the conditions due to past failure to comply.” (emphasis added)
This report, containing these observations, was also before the Board. These remarks were made in circumstances where, otherwise it was considered that the proposals made by the applicant were unexceptionable. The applicant says: why then were these observations made at all?
48. I would wish it to be understood that reciting rhetorical question this Court I am far from concluding that the imposition of the conditions in questions were in any way actuated by an improper motive. I emphasise, I make no such finding. However, the rhetorical question, in this specific context, indicates a further basis for the observation that in the circumstance where the condition is not one of those generally envisaged in s. 34, there is an enhanced obligation to provide reasons which come within the requirements outlined in the judgments in O’Donoghue and Mulholland. In this case, with this background, there has been an obligation to state reasons for the condition clearly, cogently, and in a manner to eliminate a reasonably held doubt as to whether there had been an error in law, a misunderstanding or other unlawful basis for the condition. The specific solution did not allow for permit, a formulaic mantra or a ritualistic form of words as being a sufficient rationale. This finding is on the facts of this case.
49. Ms. Niamh Hyland B.L. on behalf of the Board sought to outline a number of circumstances in which the ‘reason’ given might indeed be justified, rationalised or contextualised. The term ‘in the interest of orderly development’ might be understood in the context of the phraseology of an earlier permission, granted in 2003, where permission had been sought for the demolition of existing hangars, the construction of new hangars, office and club house and 180 car parking spaces, together with aircraft parking and associated development works. The permission for the development of the hangars together with adjoining car parking was refused. The permission for the remainder of the development was granted in accordance with plans and particulars, the gist of which was to allow for a full assessment of any substantial intensification of user of the premises. In this context perhaps this was the ‘orderly development’ referred to.
50. This was indeed a retention permission. It contained within it a specific incorporation of a previous permission granted in 2003. Thus the conditions need not necessarily set out a general principle. The application related to the same applicants and related to the same general locus as that previous permission. It might be seen within the same parameters.
51. A further explanation, by no means unreasonable in itself, is the undoubted fact that the applicant had accepted, in the course of submissions to the planning authorities, that this application should not be dealt with in isolation and treated with, and in the context of, the previous permission. A further possible explanation might be in the interest of residential amenity – undoubtedly an issue in the locality in view of the proximity of dwelling houses close to the development and the fact that it was a retention permission with the potentiality of intensification of user.
52. However, the very fact that these various plausible reasons were canvassed in submissions as attending the condition begs a further question, why then were none of them specifically given by the Board when it furnished its reasons?
53. Furthermore, in the context of this case, the fourth of the reasons given by Kelly J. in Mulholland comes into focus: the supervisory role of the court. A distinction may exist between what an applicant subjectively “well knows” as to context or meaning, by way of a reason sufficient to satisfy a contrast to the court in the exercise of its statutory role.
54. An applicant may know the parameters within which an application was made and its relationship to a previous permission. But the fact that such applicant may have this information does not in all circumstances provide an end point to the duty to provide objectively justifiable reasons, such that the supervisory jurisdiction of the court may be exercised. An applicant while knowing the context may not necessarily be aware of all the elements which form part of a consideration in the inspection process the manner in which a matter is placed before a decision maker, or the decision itself.
55. It is in this legal and factual context therefore that an enhanced duty existed in the instant case. The very purpose of the duty to give reasons is to remove lingering doubts as to motive or rationale. Such doubts are not always removed by formulaic recitals.
56. In Killiney and Ballybrack Development Association Limited v. The Minister for Local Government & Anor. [1987] I.L.R.M. 878 at 81, counsel for the respondent Minister had sought to justify conditions imposed by the respondent Minister on the basis of instructions received from his client but which had not been contained in the condition itself. To this Henchy J. responded:
“I do not accept, however, that a development permission may be construed with the aid of extrinsic matter of this kind put forward as an elaboration of formal written reason given for one of the conditions of the permission. The condition in question must stand or fall by its written terms and conditions.”
The observation in that case applies a fortiori in the instant case, both upon the statutory basis from which the condition derives and also the evidential context placed before this Court.
57. In the factual context of this case, and having regard to the unusual evidential features identified, I do not consider the reason given for the condition was sufficient to comply with the statutory duty of the Board. In the light of what is now known more was required to remove any reasonable apprehension in law, irrationality or doubt as to propriety of purpose. Consequently, I consider that the applicant is entitled to judicial review on this basis.
Proportionality and the Convention Act of 2003
58. In the course of argument, counsel on behalf of the applicant submitted that, even if the court were to declare that the court had acted in excess of jurisdiction in failing to give adequate reasons that nonetheless, consideration should be given to a third facet of the claim, that is to say, whether the condition which had been imposed was proportionate and whether the applicant’s rights under Article 1 of the First Protocol of the European Convention on Human Rights was engaged.
59. I do not think that this would be an appropriate course of action for this Court to adopt. I make this finding for the following reasons. First, any finding in relation to the issue of proportionality might necessarily carry with it an element of prescription, that is to say, an indication or an implication to the Board as to the manner in which it should proceed in the future. As Carroll J. found in Phillips v. The Medical Counsel [1992] I.L.R.M. at p. 469, judicial review does not exist to direct procedure in advance but to make sure that bodies which have made decisions susceptible of review have carried out their duties in accordance with natural and constitutional justice and in accordance with fair procedures. For this Court to seek to prescribe the manner in which the Board should proceed on any reconsideration would necessarily fetter its discretion. Still more would any direction to the effect that the Board should proceed in a particular way.
60. Second, the very finding which has been made in the course of this judgment has the effect that the question of Convention rights are not engaged. As a starting point for the invocation of Convention rights there must be a clear and identified procedure and a “determination” giving rise to circumstances where the applicant may rely upon Convention rights. Such rights do not arise pre-emptively or in hypothetical circumstances. (See Salabiaku v. France 10519/83 [1988] E.C.H.R.; Barberá v. Spain (Application No. 10590/83, judgment of the European Court of Human Rights, 6th December, 1988) and Kennedy v. The Director of Public Prosecutions and the Attorney General [2007] IEHC 3.)
61. It will be noted that s. 3 of the European Convention on Human Rights Act, 2003 provides:
“3-(1) Subject to any statutory provision (other than this Act) or rule of law every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of section 1 may if no other remedy in damages is available institute proceedings to recover damages in respect of the contravention in the High Court.” (emphasis added).
62. The effect of the order already made is to remove the basis for the invocation of Convention rights. Any ‘injury, loss or damage’ has been rendered unlawful by the previous finding. It is not a function of the court to prescribe or consider hypotheses. There is a fundamental distinction between the findings which have been made in this Court as to the lawfulness of the condition, and any hypothetical observations which might be made on this condition or of any other condition or the reason therefor. Still more do these observations apply in relation to any question of a mandatory order (or order with such effect) as to how the Board should proceed. The court will therefore confine itself to granting an order of judicial review on the second ground and will remit the matter to the Board to be considered in accordance with the law applicable.
Ecological Data Centres Ltd v An Bord Pleanála
[2013] IESC 61
Judgment of Mr. Justice Hedigan delivered on 22nd day of January, 2013.
1. The facts are not in dispute in this case. I have been referred to the decision of MacMenamin J. in the case of Urrinbridge Limited v. An Bord Pleanála & Ors. [2011] IEHC 400. This case is indistinguishable from that case in its decisive point, i.e. the determination of the application before An Bord Pleanála took effect when notice of the decision was first sent.
2. If that decision is followed in this case, then the applicant must succeed because the appeals of the three Michels were withdrawn on the 16th March, 2011 whilst the appeal had not yet been determined. If Urrinbridge is followed, that determination did not occur until at the very earliest the 21st March, 2011. At that time, the appeals having been withdrawn, An Bord Pleanála no longer had jurisdiction to determine the appeals.
3. Two questions arise –
(a) Does this Court agree with the Urrinbridge decision?
(b) If it does not, should it nonetheless follow that decision based on the established principles of stare decisis between courts of equivalent jurisdiction as set out by Clarke J. in Kadri v. The Governor of Cloverhill Prison [2012] IESC 27.
4. I have read the decision of MacMenamin J. carefully and have both read and listened to the very helpful submissions of both sides. I have come to the conclusion that the exhaustive analysis by the learned Judge is a thorough and complete one and that the decision in the judgment is correct. In fact I do not believe there is anything that I can usefully add to that judgment and I am content to gratefully adopt the reasoning contained therein. This being so, the stare decisis issue need not be addressed by me.
5. In the result, the decisive point of Urrinbridge being dispositive of the issue in this case, I find that the applicant is entitled to orders in accordance with paragraphs 1, 2 and 3 of its notice of motion dated the 12th May, 2012.
Mooney v An Bord Pleanála [2015] IEHC 193
JUDGMENT of Mr. Bernard J. Barton delivered the 26th day of March 2015.
1. By Order dated the 13th of January 2014 ,the respondent was given leave to apply for judicial review in the matter of appeal reference number PL 29N242229 Development Demolition/removal of all pre-fabricated structures on the site and construction of twelve classroom primary school building at Gaelscoil Bhaile Munna, Junction of Santry Way/Coultry Road, Ballymun, Dublin 9 of the 14th of November 2013, signed and dated the 19th of November 2013 and as set forth in the statement of grounds signed by the applicant.
2. In short, the applicant seeks an order of Certiorari to quash the decision of the respondent to grant planning permission for the demolition of the existing pre-fabricated school structures and for the construction of a new permanent school building (“the school”) at the junction of Santry Way/Coultry Road, Ballymun, Dublin 9.
3. The grounds upon which the applicant was given leave to apply may be summarised as follows :
(a) The report of the inspector was biased, disingenuous, and defamatory of the applicant
(b) The report deals primarily with the school aspect of the plans and very little if any attention was paid to the car park beside the applicant’s home.
(c) That the inspector misquoted the applicant under the grounds of appeal and was therefore disingenuous.
(d) That the inspector’s opinion that the school redevelopment should be held to effective ransom over the agreement of such a scheme was defamatory of the applicant.
(e) That the omission by the inspector of a meeting between Ballymun Regeneration Ltd (BRL) and the school dated the 19th of January 2012 whereby BRL noted that forming a large vacant lot with parking and play courts between the new school and the existing premises at 380 Coultry Road as per option (E) presented was not appropriate for the site, constituted a bias on the part of the inspector.
(f) That as the applicant was a disabled person with limited mobility with a legal right to gain access to his home without hindrance via the provided access area outside his house, the inspectors opinion that the driveway was not entirely dependant on access from a particular point in the road given the open nature of the intervening ground and that the applicant had no issue with the rebuilding of the school on the same footprint whilst also expressing the view that the applicant held a view that the masterplan did not necessarily intend the Gaelscoil to stay at its location over the longer term constituted conflicting statements and, in the view of the applicant, indicated bias.
(g) That condition 4 of the grant of permission requiring the school to adhere to the requirements of the planning authority in respect of vehicle access arrangements, footpath interface, parking facilities and standards of development contained in the roads and traffic planning division report would, in effect, require significant changes to the plans submitted and that therefore the application should have been refused.
(h) That the applicant did not get an open and fair hearing under Article 6 of the European Convention on Human Rights in that he was not afforded a right to reply to the first party response with which he had issue and that the meeting where the decision to grant permission was made was not a fair and transparent hearing.
(i) That the applicant was denied certain rights under the Aarhus Convention.
(j) That public participation was sought after the fact that the plans were approved by the Department of Education and Skills prior to the public meetings.
(k) That no consideration was given by the respondent to the applicant’s personal health and well-being in allowing an open air car park to be placed along and beyond the applicant’s boundary wall.
(l) That having regard to the close proximity of the car park and the entrance/exit there should have been an environmental impact statement to assess the potential damage to the applicant’s health due to emissions.
(m) That there were inaccuracies in the planning application under the planning and development acts and the planning and development regulations which rendered the application invalid namely that
(i) The application states only the height of the walls and buildings, not the building as required
(ii) The application was for a two storey building when it was in fact a two and a half storey building
(iii) That there were four previous planning applications for the address given but that these could not be found on file
(iv) That the fore mentioned in the application referred to a site beside 380, Coultry Road, Ballymun, Dublin 9, the applicants home
(v) That there were in fact five applications made by the applicant for the site beside 380, Coultry Road, the missing application being the first application where planning was approved by Dublin City Council to erect two pre-fabricated classrooms on the 3rd of July 1995 and
(vi) Three different addresses were given for the same school.
4. The respondent delivered a statement of opposition dated the 13th of May 2014 which may be summarised as follows :
(a) That the report of the inspector accurately adequately and fairly reported and summarised the submissions made by the applicant to the respondent and was not biased, disingenuous or defamatory as alleged
(b) That the use of the term “ransom” by the inspector was figurative only, was not defamatory and could not constitute a ground for quashing the boards decision
(c) That there was no requirement to address development option ( E), as it did not form part of the application
(d) That as the location of the proposed vehicular access and its distance from the public road was evident from the plans and particulars lodged and the report of the council’s roads and traffic division dealing with both the eastern and northern boundaries of the site, the applicant’s contention that the comments that the road and traffic planning division report was inconsistent with the plans submitted was incorrect in fact and in law
(e) That the question of illegal parking in front of the applicant’s house, its causes, and the extent to which it was a planning matter, was assessed with due care by the board’s inspector
(f) That the statements of the inspector in the report were not conflicting but rather that the inspector was merely paraphrasing the applicant’s appeal submissions and that accordingly her statement accurately represented the submission made
(g) That as the developer’s submission to the respondent was confined to issues already raised by the applicant, the decision of the board under s.131 of the Planning and Development Act not to circulate the developer’s submissions to the applicant was entirely consistent with the applicant’s right to a fair hearing, moreover the reasons for the decision of the board were sent to the applicant on the 21st of November 2013
(h) Since the development did not require or involve an environmental impact assessment that no significance was to be attached to the fact that plans were approved by the developer and the Department of Education and Skills which funds the development before being submitted for permission
(i) That the board considered all matters of planning relevant to the issues raised by the applicant in coming to its decision
(j) That there was no evidence before the board relating to the impact on health of car parking in relation to the applicant’s property which the board failed to consider
(k) Any challenge to the validity of the planning application on the grounds that it was inaccurate and invalid was out of time. As a ground for judicial review, that was a matter for the planning authority which validated the planning application, and should have been raised against it within eight weeks of its decision.
(l) Without prejudice to the foregoing it was denied that the planning application failed to state the height of the building, that the application misstated the number of storeys in the proposed development, that there was any material misstatement of the number of previous applications or that the applicant was in any way misled by any statement or that the address of the developer was a misstatement. In any event the applicant was not confused by the address details given as he was aware at all times that the application related to the school next door to him and
(m) Finally, insofar as the statement of grounds set out a number of contentions relating to the planning merits of the proposed school those do not constitute grounds of judicial review.
Background
5. It appears that the original and the existing pre-fabricated school on the site opened in 1997. The proposed development in respect of which permission has been granted by the respondent is to be funded by the Department of Education and Skills. The school obtained approval from the department to apply for permission to replace the existing prefabricated structures with permanent buildings on the same site in 2012. Following on from that, an application was made for permission by Application number 3504/12 dated the 22nd November 2012 and registered on the 31st of May 2013 and in respect of which a decision was made on the 24th of June 2013 Decision number P1536 whereby the planning department of Dublin City Council decided to grant permission for the development upon the conditions and reasons set out in that decision.
6. The school in question adjoins the applicant’s residence being number 380, Coultry Road, Ballymun, Dublin 9. The applicant objected to the application for permission in writing and this was received on the 26th of November 2012 and has been read by the court. From the decision to grant permission on the 24th of June 2013 the applicant appealed to the respondent (hereinafter the board). The applicant did not seek leave to judicially review the decision of the planning authority on the grounds that the decision was made upon an application which was inaccurate and invalid or otherwise. The applicant’s appeal, dated the 16th of July 2013 and received by the board on the same date, together with maps and photographs contained therein and running to 26 pages in all, conveys in detail the applicant’s objection to the grant of permission and his reasons therefore. This has been read and considered by the court.
7. Submissions were also made to the board by Steven Liddle and Associates, Chartered Town Planning and Development Consultants, on behalf of the school in support of the City Council’s decision to grant permission. It is clear from a reading of that submission that it sought to address and respond comprehensively to the applicant’s grounds of appeal and did so by following the same structure employed by the applicant for the purposes of addressing the issues which he had raised in his appeal. Also apparent from a reading of those submissions is that there were no new matters or issues raised upon which it might be said the applicant ought to have properly been afforded an opportunity to respond.
8. Submissions were also made by the council which were confined to an opinion that, as planning authority, it considered the planning report and conditions attached to the application to be justified by its decision.
Decision of the board.
9. The decision of the board sets out the reasons and considerations for the decision and the conditions upon which it was granted. The conditions attached require the development to be carried out and completed in accordance with the plans and particulars lodged with the application as amended by further plans and particulars received by the planning authority on the 31st of May 2013 except as otherwise required in order to comply with further conditions which are specified and that where any such conditions required details to be agreed with the planning authority the developer was to agree such details in writing with the planning authority prior to commencement of the development and that the development should be carried out and completed in accordance with such agreed particulars.
10. The conditions were :
(a) The outdoor basketball courts should not be used after 17.00 hours, save in accordance with the grant of planning permission
(b) That all service cables were to be run under ground within the site
(c) That the requirements of the planning authority should be strictly adhered to in respect of vehicular access arrangement, footpath interface, parking facilities and standard development
(d) That water supply and drainage arrangements should comply with the requirements of the planning authority for such works and services
(e) That the applicant would implement the measures to be set out in the submitted mobility management plan in accordance with the requirements of the planning authority
(f) That the development and building works would only be carried out between certain hours which were specified and that deviation from those times would only be allowed in exceptional circumstances where prior written approval had been received from the planning authority
(g) That materials colours and textures of all external finishes would be agreed in writing with the planning authority before commencement of the construction of the school and that the developer was to submit a detailed landscaping plan and to include provision for adequate enclosure of basketball courts and details of all boundary treatments including the eastern boundary in particular, which was to be back planted with semi mature indigenous deciduous species of trees with the further requirement that in the event of any such plants or trees being damaged, removed, or dying within a period of five years from the completion of the development these were to be replaced with similar size and species of trees unless otherwise agreed with the planning authority.
11. The reasons for each of these conditions were also set out in the decision of the board as required by law.
12. In addition to the submissions, the entire planning file, including request for and supply of additional information together with a report from the inspector, a report from the engineering department, a report from the roads and traffic planning division and the water services division as well as other ancillary reports were before the board for consideration.
13. The applicant takes particular issue with the content of the report of the inspector contending that it is disingenuous, discloses bias and contains a statement defamatory of him.
14. The inspector was appointed pursuant to the provisions of s.116 of the Planning and Development Act 2000 as amended. The inspector visited the development site on the 9th and 15th of October 2013 and concluded her report with a recommendation to the board that permission be granted upon the reasons considerations and conditions specified. The report is dated the 23rd of October 2013.
15. Following an introduction in relation to the proposal, the report considers in detail the description of the site, boundary development features, parking, an overview of the proposed development, accommodation facilities, layout and design, consideration of the civil engineering report and photographs, a tree survey, archaeological impact assessment, ecological desktop studies and screening of appropriate assessments, a mobility management plan, a landscape development plan, a letter of authorisation from Ballymun Regeneration Ltd, a letter of confirmation of voluntary status from the school, minutes of preplanning application meetings, a letter of support from Ballymun Regeneration Ltd, a schedule of drawings, a flood risk assessment, a relevant planning history, the decision and conditions attached of the planning authority, internal and technical reports, the planning authority’s submissions and letters of support, the Ballymun Regeneration Ltd masterplan, the Dublin City Development plan, consideration of the planning guidelines and guidance documents, the applicants grounds of appeal and concludes with the inspector’s assessment and recommendations.
16. The report recommendations were considered by the board before determining the matter as is required by s.146 of the Act.
17. The summation of the applicant’s grounds of appeal at para. 6.1 of the report, disclose that the inspector appropriately appreciated these highlighting with specificity the impact the development was to have on the amenity of the applicant’s dwelling and adjacent proposed entrance and car park including loss of open space, boundary treatment, siting of the school, associated traffic nuisance and hazards, alternative siting and media reports of anti social behaviour and all with reference to the applicant’s submission in relation to these matters.
18. The inspector’s report also summarises in some detail the submissions made on behalf of the school by Steven Liddle and Associates.
19. Amongst other matters, the inspector’s report recited the issues raised in the appeal and which may be summarised as being;
(a) Principle of the development at the location and on an open site
(b) Impact on residential amenity – loss of open space – boundary issues – nuisance
(c) Traffic implications – congestion -nuisance
(d) Antisocial behaviour, height of buildings, use of basketball courts after certain hours, parking and obstruction, disturbance and distraction of visual amenity by siting of car park, lack of clarity in plans as to siting of the school extension, misstatement of masterplan objectives for the school and the applicant’s view of the development and its affects on him.
20. These issues are dealt with in a detailed and discursive fashion in the inspector’s assessment under a number of headings which were
(a) Principal of development, where the Ballymun Masterplan ,sustainable land use , the school site, the Coultry Action Area Plan, form and scale of the development as a completion of the streetscape are all considered,
(b) Loss of open space and layout objections, which were identified as
(i) No provision in plans
(ii) Breach of building line
(ii) Visual impact
(iii) Attraction of antisocial behaviour.
The first three of these were considered under subheadings of ‘conflict with plans’ and ‘building line/visual impact’ and the fourth under the heading of ‘residential amenity’.
(c) Residential Amenity dealt with issues of ‘antisocial behaviour’ as well as ‘loss of open aspect’, ‘layout’ and ‘disturbance’. Traffic implications and appropriate assessment screening were each considered individually.
(d) Transport implications which dealt with traffic congestion, parking, and included consideration of the Mobility Management Plan, and
(e) Appropriate Assessment Screening which included consideration of the conservation objectives of the National Parks and Wildlife Service as the report of the consultant ecologist advising that the redevelopment would not have any significant adverse affects on the Natura site network .
21. Accordingly, on its face the report discloses that these matters raised by the applicant were understood and considered by the inspector.
22. The applicant also takes issue with the report of the council’s traffic and planning division contending that it is inconsistent with the plans submitted in that the report stated that the school was being constructed at the north western corner of the site and did not refer to the eastern side of the site which was Coultry Road. However, that report, when dealing with the question of vehicular access to the car parking area, specifically refers to the new 5.2 metre wide vehicular entrance onto Coultry Road and identifying it as being at the furthest point from the junction between Coultry Road and Santry Way. On the face of it the traffic division was aware not only of the location of the school but also the location of the road and access points for vehicular and pedestrian traffic for the school.
23. With regard to the vehicle access, which included the school’s proposals for a reduction in the number of pupils being brought to school by car, the roads and transport planning division expressed a view that the number of parking spaces provided was appropriate and accepted the school drop off arrangements proposed.
Submissions
24. Both parties made written and oral submissions. A number of the grounds in respect of which the applicant had been given leave were not advanced in the course of the hearing. However, having regard to the fact that the applicant was neither legally advised nor represented , against a background of a complaint that he had not had a fair hearing by the board ,and with the assent of the board ,some latitude was afforded to him in relation to the making of his case at the hearing.
Grounds advanced in respect of which leave was given
25. The applicant complains that the inspector’s report was biased, disingenuous and defamatory.
26. With regard to the contention that the report was defamatory of the applicant he cited a particular phrase contained in a sentence in part of the inspector’s assessment at para. 13.4 under the heading “residential amenity” which reads “…I do not consider that the school redevelopment should be held to effective ransom over the agreement of such a scheme.”
27. The applicant maintains that as he was the only objector this statement could only be a reference to him. He submitted that this statement discloses bias on the part of the inspector in that she considered the objection by him as being obstructive. He had not nor was it his intention to bring defamation proceedings. He relied on the decision of this court in Tolan v. An Bord Pleanala [2008] IEHC 275 which was an appeal from the Circuit Court in an action for damages and a mandatory injunction directing the defendant to remove from the planning file a letter written by a third party. The court awarded damages and ordered the defendant to remove the offending letter from the file.
28. The board submitted that judicial review was concerned with the manner in which the decision was reached and was not a review of the merits of the decision. It might be said that the particular phrase was unhappily expressed but it had been taken completely out of context and when read in context could not be taken as a personal comment directed at the applicant. Even if the statement of the inspector was in some way defamatory that was a private law matter for which the remedies were in damages and injunctive relief but not judicial review. The alleged defamation did not go to the validity of the board’s decision, however, it was accepted that bias is a ground for judicial review. When read in context it was submitted that the inspector was clearly dealing with the loss of open aspect/anti-social behaviour complaint and was not making a personal reference to the applicant.
29. Apart from the fact that Tolan was a defamation action and not involving judicial review the offending letter in that case originated from an outside third party and not from within the planning authority. In this case the inspector’s comment was made in the context of the complaint of anti-social behaviour which, it is clear from the assessment, was being taken seriously and for consideration by the inspector. It was submitted that the inspector was doing no more than expressing a view that the issue could be addressed if necessary and if desired and that agreement to the scheme referred to in minutes of earlier meetings appended to the application should not be allowed to hold up the development.
30. The applicant did make a written submission in relation to a particular comment by the inspector which he maintained was disingenuous in relation to his response to the school’s application in relation to the development as one which would provide a safe comfortable and delightful environment for students and teachers alike. However, when taken in context, a reading of the applicant’s appeal and the inspector’s report discloses what appears to be a reasonable and not inaccurate summation of the applicant’s point of view on this matter.
31. In regard to the complaint of bias in general the applicant felt that he had not been treated fairly by the inspector in that it was his view that he had not received a fair hearing and that the inspector was motivated by malice towards the applicant. He felt that the inspector and the board had ignored his submissions and that the board had failed to give proper reasons for its decision: In particular he felt the board should have given reasons as to why it was rejecting his submissions.
32. The board submitted there was no evidence to suggest either subjective or objective bias on its part or on the part of the inspector. It was accepted by the board that objective bias would arise where a reasonable person would apprehend that the applicant would not receive a fair hearing and would, if proved ,permit intervention by the court to quash a decision and in this regard cited the judgment of Denham J. in Bula v. Tara Mines [2000] 4 I.R 412 at 441.
33. On the question of subjective bias, which it was submitted a non-lawyer would understand as bias, namely, that the adjudicator had come to the matter with his mind made up in advance and that the matter was prejudged or that the adjudicator was possessed of some personal interest which lead to a particular conclusion in spite of the evidence, it was accepted by the board that that too could form the basis for intervention by the court and in this regard cited the decision of Denham J. in Dublin Well Woman Centre Limited v. Ireland [1995] 1 I.L.R.M 408.
34. It was submitted by the board that the inspector’s report, when compared with the submissions made by the parties, was a fair and accurate report of the submissions. It was accepted that in the making of a recommendation the inspector had to reach a conclusion and make a recommendation which had the effect of favouring one party or the other, however, it was submitted that reaching such a conclusion at the end of a process of consideration was not evidence of bias but rather simply the exercise of a jurisdiction conferred under statute. There was no evidence that the inspector or the board were motivated by bias of either type.
35. The applicant submitted that the inspector had failed to have any consideration for and had omitted reference to a meeting between Ballymun Regeneration Ltd and the school dated the 19th of January 2012 where Ballymun Regeneration Ltd had noted that forming a large vacant lot with parking and play courts between the new school and the existing terrace at 380 Coultry Road as per option (E) was not appropriate for the site.
36. It was submitted that this showed bias on the part of the inspector. It was submitted by the Board, however, that that option did not form part of the school’s application and accordingly it was not appropriate and did not fall to be considered by the inspector.
Roads and Traffic Planning Division Report
37. Insofar as this report described the construction of the school building by a reference to compass points that was not advanced at the hearing. In so far as the report specified the vehicular entrance of the development as being approximately 10m from the kerb line of the public road, and which the applicant submitted was inconsistent with the plans to such an extent that significant changes to the plans submitted would be required, it was his evidence that the distance from the entrance to the kerb line was just over 4m whereas the report was inaccurate in that it referred to the entrance as being approximately 10m from the kerb line of the public road.
38. It was submitted by the board, however, that the conditions attached to the permission and in particular condition 4 required the school to comply with the requirements of the Planning Authority and which related to a number of matters not just the footpath and car park interface. There was no requirement to comply with any particular statement contained in the roads division report. Even if there was a misstatement as to distance in that report it was approximate only and not stated to be a requirement. Furthermore, if it became manifest that the reference to an approximate distance of ten metres was incorrect that could be dealt with on the basis of condition 1 attached to the decision. The permission did not require the development to be carried out in such a way as to have the interface ten metres from the development. It could not be said that by reason of condition 4 there was a requirement that the development was to be carried out in such a way as to have a ten metre interface between the development and the road. In support of its submission the board cited Boland v. An Bord Pleanala [1996] 3 I.R. 435
39. Insofar as the applicant’s submission could be said to constitute a complaint that the board’s decision was unreasonable and irrational the board relied on the decision in O’Keeffe v. An Bord Pleanala [1991] 3 I.R. It was submitted that there was no evidence that the board had acted unreasonably or irrationally in the sense outlined by the court in that decision. The board had before it evidence on foot of which it was entitled to come to the conclusion it reached on this matter and that that was entirely reasonable.
40. The board submitted that questions of planning, questions of balance between development and the environment and the proper convenience and amenities of an area are placed by statute within the jurisdiction of planning authorities and the board which are expected to have special skill, competence and experience in planning questions. That is not a jurisdiction which is invested in the court. The board had before it relevant materials to support the making of its decision and there was no evidence to the contrary.
41. At the hearing the applicant stated that he did have parking issues and in respect of which leave had been granted but he did not want to make further submissions in that regard.
42. Detailed written submissions were made by the board in relation to this aspect of matters in which it was contended that there was nothing which would authorise unlawful parking. The roads transport planning division considered the number of parking spaces provided to be appropriate and accepted the school drop off arrangements comprised in a mobility management plan contained in appendix E of the planning application. It is clear from the report of the inspector and the decision of the board that this matter was considered and in that regard conditions were imposed which were intended to ensure implementation of that plan in accordance with the requirements of the council.
43. Whilst the applicant was given leave in relation to his complaint that he did not receive an open and fair hearing under Article 6 of the European Convention on Human Rights he did not advance this at the hearing. However, it was submitted that he could not glean from the reasons, consideration and conditions attached to the decision how it was that the Board had arrived at the decision nor whether they had considered his appeal. As far as he was concerned he had simply been ignored. He had not been invited to any pre-planning meeting. He felt he had been badly treated. There was in his view an inadequacy of detail in the reasons given for the decision. He did not advance a specific argument that he ought to have been given a right to reply to the submissions made on behalf of the school in relation to his appeal. Insofar as that might be said to have been encompassed by his general complaint that he did not receive a fair hearing and that the Board ignored his submissions the Board submitted that it has discretion to circulate a submission for further comment if it feels the circumstances of the case require it. That power is exercised in accordance with the rules of natural justice which fully reflect the provisions of Article 6 of the Convention.
44. Whilst the Board is empowered by virtue of the provisions of s.130 to invite a party to reply it was not bound to do so but has discretion and in that regard Evans v. An Bord Pleanala (High Court, unreported 7th November 2003) and Wexele v. Bord Pleanala [2010] IEHC 21were cited. The Board submitted that the school made its application to the local authority which prepared its reports and took a decision. That material was available to the applicant when he lodged his appeal. There was no new additional material before the Board arising from the appeal and which might have warranted the Board exercising its discretion to invite a reply to submissions made on behalf of the school. If the Board was to avoid an “endless ping pong” it must be able to determine whether any such submission raises new issues that the other side has not already had an opportunity to comment upon and if not, to terminate the circulation of submissions at that stage. It was submitted that in this case the Board had exercised its discretion appropriately; there were no new issues on which the applicant should have received the right to comment and the applicant had not identified any such issues at the hearing.
45. With regard to the applicant’s complaints about a lack of detail in the Board’s decision to grant permission, it was submitted on behalf of the Board that what it is required to do in this respect is provided for by s.34 (10) of the 2000 Act whereby the decision is required to 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 to state the main reasons for the imposition of any such conditions. In this regard the Board relied upon O’Donohue v. Board Pleanala [1991] ILRM 750 and Mulholland v. Board Pleanala [2006] 1 IR 453.
46. In the circumstances of this case it was submitted that the reasons for the decision were adequately stated in the decision itself. In relation to the parking issue which had been a concern of the applicant, the Board required the school to implement the terms of the mobility management plan which had been submitted in order to reduce traffic and held that the proposed school development would not seriously injure the amenities of the area. Accordingly, it was submitted that the Board was cognizant of and had given consideration to the appellants concerns.
47. The applicant had complained that the minutes of the meeting did not reveal the reasoning of the board; however, in reply the board submitted that it was not the minutes but rather the decision which contained these. In relation to his complaint that he did not receive a transparent and open hearing, the Board submitted that that was simply not the case. The evidence of the decision in itself disclosed that his grounds of the appeal were considered by the Board which made a determination and gave reasons for its decision. There was no evidence that the Board failed to give due consideration to the appeal before it or that it had failed to understand and properly determine the issues which arose. Accordingly, there was no basis in law which would justify the court in making an order of certiorari.
48. The applicant submitted that the Aarhus Convention applied and that the decision of the Board had the result of frustrating the Convention. He believed that the Board’s decision was unlawful because the environment in which he lives will be affected in a way that would place him in a position of danger. The Board submitted that this was not a decision of the type to which the Convention applied but in any event he had a full right to participate in the decision making process under Irish law, including the right to make submissions and the right to appeal the decision of the council and which rights had exercised.
49. It was accepted by the Board that it was required to treat the applicant fairly and had done so. It had exercised its statutory function under ss.34 and 37 of the Act of 2000 to determine whether the development was in accordance with proper planning and sustainable development of the area in which it was proposed to carry that out. The applicant made submissions to the council and when it made a decision he exercised his right to appeal to the Board which then exercised its jurisdiction to grant the permission subject to conditionally and having considered his appeal. There was no evidence before the court to suggest that it had failed to do so.
50. The applicant complained about the size and location of the proposed car park of the school and although he had been given leave on the ground that there ought to have been an environmental impact statement this was not advanced at the hearing. In any event the Board submitted that the applicant lacked standing to argue such a point and that there was no substance in it in any event as there was no evidence before the Board which would have required it to have subjected the appeal before it to any EIA process. It was not a development listed in the European Directive or in the Aarhus Convention.
51. Finally, the applicant was given leave in relation to what he claimed were inaccuracies in the planning application under the planning Acts and the development regulations and in respect of which he had sought a declaration that the application was invalid, on five grounds, but only two of which were advanced at the hearing. These related to the alleged failure of the application to state the height of the building and that the application was for a two storey building when it was, he contended, for a two and half storey building.
52. It was submitted on behalf of the Board that the plans clearly showed the height of the building as required by Article 23 (l) (1) (f) of the regulations and in this regard drawing number 0507 dated the 26th of October 2012 gives a building height of 11.975 metres. The application clearly stated that it was a two storey building, but that one end of it was higher to match the size of neighbouring developments. Paragraphs 2.2, 3.4 and 3.5 of the application dealt with those matters. The applicant had submitted that there was a discrepancy in the application insofar as it referred to the North West corner of the site as a two and half storey building. It was submitted by the Board that that was not in fact what it said but rather that the location of the school’s general purpose room allowed the building to form a two and half storey element at the corner of the site meaning that it was higher than a normal two storey building but not having three floors. The additional height was included because the other buildings on the corner were three and four storeys high and that the height of the school was stepped down as it approached the applicant’s house, however, as a matter of fact there were never more than two floors in the building and there was no evidence to indicate that the applicant nor anyone else was confused or misled by description or by the map.
53. At the hearing the applicant had made submissions in relation to the ownership of the school and its entitlement to apply for permission, contending that the school did not own the property, moreover, he sought to challenge the validity of the decision on the grounds that it constituted a material contravention of the city development plan, that the Board had not complied with its own code of conduct and that there were deficiencies in the application forms.
54. As has already been indicated, the applicant was unrepresented and so a certain amount of latitude was afforded to him by the court. Whilst the applicant was heard in relation to these matters such latitude cannot extend to a point where it would work an injustice to other parties before the court. The grounds in respect of which he was given leave do not extend to those issues and no application was made to amend and include further grounds.
55. The court is confined therefore, in its decision, to the matters properly before it and which were advanced at the hearing.
56. It was submitted on behalf of the Board that the court was concerned with the process and its legality and not with the merits of the decision of the Board. The Board was obliged to take into consideration all matters relevant to its decision, had to apply fair procedures and had to act reasonably.
57. It was submitted that the Board did not act ultra vires and that there was no evidence before the court which would warrant the court in coming to a conclusion that the inspector and the Board had done anything other than comply with the requirements of the law.
58. The applicant fairly accepted, I thought, that the whole planning process was complex and that when faced with a voluminous amount of documents in the council file he was at a disadvantage. He was unaware that he could have applied for judicial review of the original decision of the planning authority or that he could have or should have applied for an amendment of the grounds in these proceedings which would have enabled him to make other submissions to the court.
The law.
59. When the court is exercising its jurisdiction to judicially review a decision it is not concerned with the merits of that decision but rather with an assessment of the manner in which the decision has been made. The exercise of that jurisdiction is not in any sense an appeal from the decision but rather the jurisdiction exercised is supervisory in nature.
60. Under s.50 of the Planning and Development Act 2000 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006 an applicant for judicial review must have a “sufficient interest” to bring the proceedings. It was accepted by the Board that the applicant is an appellant and a neighbour of the proposed development and that accordingly has a sufficient interest to bring these proceedings.
Jurisdiction
61. The court has a jurisdiction to intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality so where, for example, a decision is fundamentally at variance with reason and common sense or where the making of the decision has flagrantly rejected or disregarded fundamental reason or common sense it may be quashed.
62. Whilst the court may intervene to quash a decision on a competent matter on the grounds that it was so unreasonable that no reasonable authority could ever have come to it proving a case of that kind would require something overwhelming. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223. The Court cannot interfere with the decision of an administrative decision making authority merely on the grounds that it is satisfied that on the facts as found it would have raised different inferences and conclusions or is satisfied that the case against the decision made by the authority was much stronger than the case for it.
63. When considering an application for judicial review in respect of a decision made by a planning authority or the Board, the jurisdiction of the court is limited in respect of certain matters and was described in the judgment of Finlay C.J. in O’Keeffe v. An Bord Pleanala at p.71 as follows:
“Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”
Onus of proof
64. The onus of proof in an application for judicial review lies with the applicant. The requirement in that regard placed on an applicant who seeks to impugn a decision on the grounds of unreasonableness or irrationality was described by Finlay C.J. p.72 in O’Keeffe as follows:
“I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision making authority had before it no relevant material which would support its decision.”
Bias as a ground for judicial review.
65. Bias may be said to be subjective or objective. Objective bias may be said to arise where a reasonable person would apprehend that the applicant would not or did not receive a fair hearing and in this regard Denham J. in Bula v. Tara Mines [2000] 4 I.R. 412 at 441 stated:
“…it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.”
66. Subjective bias may be said to consist of actual bias such as where the decision maker has come to the matter in question with a pre-determined outcome or judgment or where some personal or vested interests has led the decision maker to a particular conclusion in spite of the evidence. With all the complexities of society in the modern world the public perception of impartiality of the courts is fundamental to the administration of justice and in respect of bias Denham J. in Dublin Well Woman Centre Ltd v. Ireland [1995] 1 ILRM 408 stated
“The concept of bias developed through cases considering material interest. It also arose in cases of prejudgment, prior involvement and personal attititudes and beliefs. There are two fundamental streams of thought within this wider concept. Firstly, that there should be no actual bias i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice.”
67. Principles of natural justice and the adoption of fair procedures in the discharge of statutory obligations by a planning authority or the Board have been considered in a number of cases in the context of s.131 of the Act which provides
“Where the Board is of opinion that, in the particular circumstances of an appeal or referral, it is appropriate in the interests of justice to request—
(a) any party to the appeal or referral,
(b) any person who has made submissions or observations to the Board in relation to the appeal or referral, or
(c) any other person
to make submissions or observations in relation to any matter which has arisen in relation to the appeal or referral, the Board may, in its discretion, notwithstanding section 127 (3), 129 (4), 130 (4) or 137 (4)(b), serve on any such person a notice under this section—
(i) requesting that person, within a period specified in the notice (not being less than 2 weeks or more than 4 weeks beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and
(ii) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and without further notice to the person, pursuant to section 133 , determine the appeal or referral.”
68. In Wexele v. Bord Pleanala [2010] IEHC 21 where the provisions of the section fell for consideration Charleton J. stated
“19. To a limited extent, the principles of natural justice have an influence on the interpretation of this section. The Board is not obliged to bring every fresh submission to the attention of a party to the appeal and to ask for further observations. The first principal applicable is that of utility. The scheme under the Act is not to be replaced with a mechanical application of the notion derived from civil law that everything before the decision maker must also be before the parties and that everything which is submitted must be known to all sides and that they must be given a reasonable opportunity to counter to with submissions of their own. That is clearly outside the scheme of the Planning and Development Act, 2000.
20. Fundamentally, if a complaint is made that an applicant was shut out of making a submission that party must show that they have something to say. What they have to say must not be something that has already been said. Nor can it be a reiteration in different language of an earlier submission. If a party is to meet the onus of alleging unfairness by the Board in cutting them out of making a submission they must reveal what has been denied them, what they have to say and then discharge the burden of showing that it had been unjust for the Board to cut them out of saying it. In Ryanair v. An Bord Pleanla, [2004] 2 IR 334 the applicant had been invited to make a submission under s. 131 but the time limit imposed by statute had not been adhered to. The question, as Caoimh J. saw the matter was what else the applicants would have been able to say had the statutory opportunity been afforded to them. As a matter of fact Caoimh J. held that, the applicant had made a submission.”
69. Where a complaint of unfair procedures is made, the question which the court has to ask is whether or not the matters which might reasonably have been expected to result in the planning authority or the Board in granting or refusing permission or to impose conditions have been considered or whether in the making of the decision an injustice has been perpetrated through a new and objectively significant matter being brought into the equation of which the appellant had no notice. See Wexele v. Bord Pleanala infra.
Statement of reasons and considerations in the decision.
70. Section 34 (10) of the Act of 2000 obliges a planning authority or the Board to set out the reasons and considerations for its decisions and if any conditions are imposed, the reasons for the imposition of such conditions.
71. As to that obligation Murphy J. in O’Donoghue v. Bord Pleanala [1991] ILRM 750 stated:
“It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations …”
72. A similar test is to be applied in relation to the decision maker’s considerations and of this Kelly J. stated in Mulholland v. Bord Pleanala [2006] 1 IR 453
“34 The obligation at (b) above to state the considerations on which a decision is based is, of course, new. I am of opinion that, in order for the statement of considerations to pass muster at law, it must satisfy a similar test to that applicable to the giving of reasons. The statement of considerations must therefore 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 himself for such hearing or review;
(3) know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider; and
(4) enable the courts to review the decision.”
The Aarhus Convention.
73. Article 6 of the Convention provides that public participation in the decision making process is to be gauranteed in cases listed in the annex of cases likely to have a significant effect on the environment
“1. Each party
(a) shall apply the provisions of this Article with respect to decisions on whether to permit proposed activities listed in annex 1;
(b) Shall, in accordance with international law, also apply the provisions of this Article to decisions on proposed activities not listed in annex 1 which may have a significant effect on the environment. To this end, parties shall determine whether such proposed activity is subject to these provisions;”
Obligations of a planning authority and the Board on an application for permission.
74. The obligations placed on a planning authority and the Board on an application for permission is provided for by ss. 34 and 37 of the Act of 2000. These require the planning authority (s.34) and the Board (s.37) to determine whether the development, the subject matter of the application, is in accordance with the proper planning and sustainable development of the area in which it is proposed to carry out the development.
75. In this case the position of the Board in the appeal is to determine the application as if it had been made to the Board in the first instance. The effect of the decision of the Board operates to annul the decision of the planning authority as and from the time when it was given and subsections (1) (2) (3) and (4) of s.34 shall apply subject to any necessary modifications, in relation the to the determination of the application by the Board on appeal under s.37 as they apply in relation to the determination under s.34 of the application by the planning authority.
76. An application for permission is only valid if it complies with the provisions of s.34 of the Act and the planning and development regulations 2001. Article 22 of the regulations makes provision for the requirements that must be satisfied to render a planning application valid and Article 23 provides for those requirements in respect of plans, drawings, and maps referred to in Article 22. Article 26 makes provision for the consideration as to compliance with the requirements of a number of Articles including Article 22 and for the procedures to be followed upon compliance or otherwise. in Hayes v. Bord Pleanala (unreported, 1998) 7 JIC 3004) it was held that minor infringments of the regulations would not render an application invalid provided such error did not mislead the public or work to the disadvantage of the planning authority or the public. Errors which are so trivial or so technical or so peripheral or otherwise so insubstantial do not have the effect of rendering the application invalid provided that the regulation has been substantially and adequately complied with. See Monaghan UDC v. Alf-a-bet Ltd [1980] ILRM 64.
Decision.
77. The hearing in this case proceeded over five days and having considered the evidence, documentation placed before the court, the submissions made by the applicant and on behalf of the Board ,the decision of the court in relation to the matters properly before it on the grounds in respect of which leave was given and which were advanced at the hearing are as follows
78. The Board in considering the inspector’s report was not confined to the content of that report insofar as it recited the applicant’s grounds of appeal. The Board had those submissions before it and was not, therefore, dependant only on the inspector’s summation of the applicant’s appeal when being considered. Even if it was so dependant, when read as a whole ,as it must be, the inspector’s report could not ,in my view, reasonably found a conclusion by the court that the inspector had been disingenuous nor could it found a conclusion of bias towards the applicant. Moreover, the statement by the inspector that she did not consider that the school redevelopment should be held to effective ransom over an agreement in relation to a scheme, which the applicant claims was being defamatory of him, has been taken completely out of context .When read in context the statement refers to the minutes of earlier meetings appended to the application which included a suggestion of incorporating residual open space into the development which might still be preceded with if desired rather than being a personal reference to the applicant and with the inspector going on to observe that the development did not inhibit nor was it designed in a manner which made it dependent on the residual open space being retained.
79. It is apparent from a reading of the inspector’s assessment that, when addressing the applicant’s appeal, she was cognisant of and took his concerns into consideration. It is also clear from her assessment that the inspector took into account the other reports and materials available to her, including submissions made on behalf of the school and the council, before making her decision. The report was prepared on the basis of two inspections of the site made by her as well as on all of the materials before her and that having done so she made a reasoned recommendation to the Board to grant permission. Her report was, in the view of the court, balanced and fair to all of the parties concerned.
80. There was no evidence that the Board was either subjectively or objectively biased in its determination of the appeal before it. On the contrary the evidence of materials available to the court disclosed that the Board complied appropriately and properly with its obligations and that the reasons considerations and conditions imposed were in compliance with the law. There was no obligation on the Board to provide a discursive response to the applicants appeal merely that his appeal should have been properly taken into consideration. There was no cogent evidence upon which to found a conclusion that the Board did otherwise than take all matters into consideration, including the applicant’s appeal, in determining the matter before it and in making its decision.
81. With regard to the applicant’s submission that he did not get a fair hearing, it is quite clear that in determining the application for permission on the applicant’s appeal that the Board had considered the appeal and having done so was satisfied on all of the other materials before it that the planning application and proposed development complied with the appropriate planning and development requirements.
82. The applicant’s submission that the process infringed his rights and failed to comply with the provisions of the Aarhus Convention is in my view misconceived. There was no evidence to support that submission. Fair procedures were adopted by the Board and in this regard the applicant exercised his rights under law to participate in the decision making process which included his right to appeal the decision of the planning authority to the Board. He was given a fair and full opportunity to make his objections and to express his concerns, which he did. No new issues were raised by the school in response to the applicant’s appeal which would have warranted the Board in exercising its discretion under s.131 of the Act to afford him a right to respond. As it is the court is satisfied that in exercising its discretion not to afford the applicant a response, the Board acted within jurisdiction and in accordance with the law.
83. Insofar as it was submitted that the decision of the Board is in conflict with the council’s roads and traffic planning division report such as would require a substantial alteration to the development for which permission has been granted; even if there was an error in what was no more than an approximate measurement, there is no requirement nor condition that would require the development to proceed on the basis of that measurement being a precise and correct statement of fact nor anything about the decision that the development be carried out otherwise than in accordance with the plans and specifications lodged with the application. There was no evidence that resulted in the Board or anyone else being misled by anything contained in that report.
84. Finally, as to the submission that the decision should be declared invalid on the grounds of inaccuracy concerning the absence of a specified height to the building and that the development constituted two and half storeys, it is clear from the application that the development allowed for the building to form a two and half storey element at the corner of the site, moreover, drawing number 0507 gives a specific building height of 11.975 metres. The development does not, in any event, provide for the development of a third floor. There was no evidence that the plans specifications and maps were misleading to the applicant or to anyone else or that the decision to grant permission is anything other than that in respect of which permission to develop was sought.
Conclusion
85. Having thus concluded that the applicant has failed to discharge the onus of proof in relation to the grounds in respect of which he was given leave and which were advanced at the hearing, the court will make an order dismissing the proceedings.
Cleary Composting v An Bord Pleanála [2017] IEHC 458
JUDGMENT of Ms. Justice Baker delivered on the 10th day of July, 2017.
1. The applicant seeks an order by way of judicial review quashing the decision of An Bord Pleanála dated 8th June, 2015 by which it dismissed an appeal pursuant to its powers contained in s. 138(1)(b)(i) of the Planning and Development Act, 2000 (as amended) (“the PDA”). Declarations are sought in regard to the approach of the Board to the appeal and to the planning history of the composting activity to which the application related. It is argued that the decision was not supported by evidence and is unreasonable, and was made without fairness of process and contrary to natural justice.
Relevant factual background
2. The applicant is a limited liability company and the owner of Larchill Farm at Larchill, Monasterevin in the County of Kildare comprising approximately 300 acres which historically was an arable farm on which was cultivated under rotation a wide range of crops including spring wheat, winter barley, winter wheat, oil seed rape, peas and previously, sugar beet. The applicant carries on at Larchill a waste management or a “composting facility” involving the processing and storage of horticultural and agricultural waste and organic materials, and the compost product is used to replenish the soil on Larchill. The operation in respect of which the applicant first engaged the planning process involved the bringing of organic materials onto part of the site for processing, storing and composting of these materials on site and spreading on the lands as required. The applicant also conducted a research and development project as part of its business.
The planning history of the site
3. The facility has the benefit of three planning permissions granted by Kildare County Council in 1995, 2000 and 2006 for the erection of a number of sheds for the storage of grain, hay, fodder and ancillary works, references 95/0234, 00/0094 and 06/2553. The composting activities were commenced after the last of these planning permissions was granted in 2006.
4. The level of activity has increased and certain structures were constructed to facilitate the increased storage and processing of the increased load.
5. On 28th January, 2015 the applicant appealed the refusal on 23rd December, 2014 by Kildare County Council to grant planning permission to extend the existing composting facility to accept and treat an additional annual quantity of 12,000 tonnes of waste in the facility together with ancillary works to facilitate the extension of that activity (09.244409).
6. The Board refused the appeal having come to a view that the planning history of the facility did not support the application for an extension as the activity did not have the benefit of planning permission nor was it exempt under the Act.
7. The decision of the Board issued on 8th June, 2015 stated in simple and stark terms:
“Dismiss the said appeal under subsection (1)(b)(i) of section 138 of the Planning and Development, 2000, based on the reasons and considerations set out below.”
8. The reasons and considerations comprise part of the basis of challenge in this judicial review, and the application also challenges the manner by which An Bord Pleanála came to the decision to dismiss the appeal under the statutory power contained in s. 138(1)(b)(i).
Grounds of judicial review
9. Leave was granted by Noonan J. on 27th July, 2015 to bring application for judicial review. The grounds will appear in the course of this judgment and in summary are :
(a) The respondent misconstrued the nature of the existing use and activity, and its finding that the existing development was unauthorised was not supported by any evidence, was made without finding by a court competent to so determine, and where the planning authority had determined that the activity and works on the site were not development, or if they were development were exempt.
(b) The decision of the respondent was unreasonable or irrational.
(c) The respondent made its finding unilaterally, without notice and without affording the applicant opportunity to make submissions, and is contrary to fair procedures and natural justice.
Reasons given by the Board
10. The Board determined that it was “inappropriate for the Board to give any further consideration to the grant of planning permission”. The reasons were stated as follows:
“The subject application is for development comprising the extension of an existing composting facility. It has already been decided by An Bord Pleanála that:
(a) the existing composting facility is a waste management facility which does not have the benefit of planning permission or does not benefit from any exemptions from the requirement for planning permission under the Planning and Development Acts, 2000 – 2014 or regulations made thereunder, and
(b) the existing composting facility is a development which requires an environmental impact assessment and an appropriate assessment to be carried out.”
11. The Board, having noted previous planning decisions, went on to state that it considered it inappropriate to give any further consideration to the application:
“unless and until its planning status is regularised, as to do so would be contrary to orderly development and the proper planning and sustainable development of the area.”
12. The Board gave a second reason arising from the fact that retention permission is precluded by European law as follows:
“Furthermore, the option of seeking to extend the scope of the subject application to include the existing operations is not open to the Board, because s. 34(12) of the Planning and Development Act, 2000, as amended, precludes the Board from considering an application for retention of development where an environmental impact assessment or appropriate assessment is required.”
13. This is a reflection of the determination of the CJEU in Commission v. Ireland, Case C-215/06, [2008] ECR I-4911.
14. In conclusion, the Board considered that it should not further entertain the application:
“The Board is satisfied that, in the particular circumstances, the appeal should not be further considered by it, having regard to the nature of the appeal.”
15. In summary, the Board determined that, as the existing facility did not benefit from planning permission, nor was exempt from the requirement to obtain permission, and because an Environmental Impact Assessment (“EIA”) or Appropriate Assessment (“AA”) were required, it could not entertain the appeal.
16. The first argument of the applicant is that the Board erred in failing to have regard to three declarations made by Kildare County Council regarding the facility, and that its decision is as result irrational and wrong in law. I turn now to examine these.
Three s. 5 declarations of Kildare County Council
17. The applicant made three separate applications for declaration under s. 5 of the PDA in respect of the works or use of the land.
18. On the first referral, Kildare County Council made a declaration on 9th March, 2009 (Ref: ED/00300) that the proposed works were exempted development having regard to the “nature and limited extent and scale of the activity”.
19. The second s. 5 declaration made on 30th December, 2010 (Ref: ED/00353) determined that the proposed works were exempted development having regard to the definition of agriculture contained in s. 2 of the PDA and to the exempting provisions relating to agriculture contained in section 4.
20. The third s. 5 declaration made on 7th June, 2011 (Ref: ED/00371) has the most relevance to the question in dispute. The questions posed were whether:
“(1) continued use of the farmland for the processing, storage of compost to include the importation of green waste and spent mushroom compost and the processing and storage of the green waste only in an existing shed and the mushroom waste in the existing farmyard is or is not a material change of use and is or is not development.
(2) the importation, processing, storage and composting of other organic materials in the existing farmyard as part of a research and development project and the importation, processing, storage and composting of food waste in an existing agricultural shed is or is not a material change of use which is a development and is or is not exempted development.”
21. Kildare County Council determined that the use of the lands for the processing etc. of green waste was not a material change of use and was not development, and that the importation etc. of other organic materials, including “organic fines”, was also not a material change of use and not development. Kildare County Council considered that the proposed activity, including that relating to organic fines, was “ancillary to an existing agricultural activity, and having regard to the previous decisions” (the plural was used), and made a determination that the activity was unchanged.
22. The effect of the three s. 5 declarations made by Kildare County Council was that the importation, processing, storage and composting of green waste including spent mushroom compost and other organic materials, including organic fines, was declared not to comprise development. It is clear that the third s. 5 declaration was made following a consideration of the first and second declarations made in 2009 and 2010 respectively, and that Kildare County Council took the view there had been no material change since those earlier declarations were made.
23. The applicant argues that because it has the benefit of the three declarations under s. 5 it was not necessary to apply for planning permission in respect of the works or activities on site. It is argued that the activity was agricultural in nature and, therefore, even if there was development, it was exempt from the planning requirements of the Act. In the circumstances it is contended that the Board erred in failing to have regard to these declarations.
24. The Board argues in response that it was entitled to, and did in fact make its determination on the appeal now under challenge in reliance on three later determinations, and that it did not fail to have regard to the three earlier declarations.
25. I turn now to examine the planning decisions of the Board.
Three s. 5 declarations of An Bord Pleanála
26. Subsequent to the making of the three declarations by Kildare County Council, a number of referrals were made by a third party to An Bord Pleanála under section 5. The Board departed from the decisions made by Kildare County Council in each determination made respectively on 5th September, 2013 (09.RL.3029 and 09.RL.3045) and on 30th July, 2014 (09.RL.3216). None of these decisions was challenged by the applicant who would now be out of time to do so. It is also of note that the applicant engaged fully with the Board in regard to the matters referred for determination.
First and second declarations 5th September, 2013. Board ref: 09.RL.3029 and 09.RL. 3045
27. The first referral to the Board, 09.RL.3029 for a declaration regarded the question determined by Kildare County Council in the 2011 reference. The question in simple terms was:
“Whether the processing of organic fines is an exempted development (domestic rubbish) in an existing farmyard.”
28. Two referrals came to the Board at the same time, the other a referral by Kildare County Council following a request for a declaration by the same third party from the planning authority (09.RL.3045). The two referrals were dealt with together although two separate reports from an inspector were furnished which showed considerable overlaps and identical descriptions of the site, development and planning history. One report was adduced in evidence in the present application because of the overlap.
29. The inspectors characterised the waste being processed, stored and composted at the site to be green waste, including spent mushroom compost, food waste including animal by-products, organic fines as classified in the European Waste Catalogue and hazardous waste list, organic fines which are not capable of being composted and waste material, bio-stabilised material created as a by-product of a composting activity. A further question arose for consideration by the Board relating to the construction, excavation, demolition, extension, alteration or renewal of the composting windrows, retaining walls and waste water holding tanks on the lands.
30. It is clear from the reports of the inspectors that submissions were received on behalf of the applicant through its solicitors. Those submissions, inter alia, pointed to the fact that the activity was not commercial in the sense that the compost created by the process was not sold commercially to any other party but was used on the farmlands. Reference was made to the three declarations made by Kildare County Council, the last of which in 2011, ED/00371, had dealt inter alia with the organic fines and spent mushroom compost and the research and development component of the activity. It was contended that the question of whether the activity or works were development and not exempt was in effect res judicata, and that there had been no change in the circumstances since April, 2011, the operative date for the last of three s. 5 declarations made by Kildare County Council.
31. From the reports of the inspectors in evidence before me it is apparent that the three s. 5 declarations made by Kildare County Council were considered and explained, and that the inspector analysed the development of the overall activity on site with a view to ascertaining whether a material change had taken place between 2009, when the first declaration was made, and 2012. The report in 09.RL.3029 ran to 41 closely typed pages. Certain factors were regarded by the inspector as relevant to the determination, and he noted (at pp. 35ff) that over a period of two to three years, a number of changes had occurred in the activities being carried out, including a “tenfold increase in the amount of material handled”, a change in the origin of the material in that the material received was not merely horticultural i.e. green waste, and the fact that some of the final composted organic fines could not, as a matter of law for reasons arising under the waste management legislation, be used as compost on the farmland but was transferred elsewhere for incineration. The inspector also expressed the view that the purpose of the activities being carried out had changed as the process produced a by-product which could not be spread on farmland.
32. The inspector also noted a likely “tenfold increase” in traffic and vehicular activity on the site, and the construction of new structures including a surface water holding tank and a wall.
33. The conclusion of the inspector was that there had been “significant intensification” of the activity and a “factual change” in the nature of the activity, such that the facility had become a “waste-related project” involving the processing of municipal waste, the by-product of which was required to be exported to a different storage site. The inspector regarded it as irrelevant whether the activity could be described as “commercial” but did note there was an “industry standard weighbridge and office at the entry point of the site” and that the applicant had indicated a future intention “to carry out a larger scale or commercial activity”.
34. The inspector expressed the view that the activity did involve a change in use of land from agriculture to a waste related and a research and development process, that this change was material in planning terms and was, therefore, development.
35. It is significant that the inspector also expressed the view that the activity could not be categorised as exempted as it required an EIA and AA as the site was relatively close to the River Barrow and River Nore Special Area of Conservation (“Nore SAC”).
36. The Board gave its decision on the 5th September, 2013 in 09.RL.3029 and 09.RL.3045 and concluded that the importation, storage, composting, spreading and/or disposal of organic fines and/or related research and development were development, and not exempted development. It also declared that the use of the agricultural sheds for the storage and processing of imported waste constituted a material change of use, and the provision of underground storage tanks and the construction of a reinforced concrete retaining wall could not be exempt.
37. In its direction of 22nd August, 2013 the Board had expressly noted that it did not share the opinion of Kildare County Council in ED00371 (the June, 2011 declaration) in respect of the continued use of the land for waste processing etc.
Third Board reference 09.RL.3216, 30th July, 2014
38. A further third party referral was made to the Board on 3rd April, 2014, 09.RL.3216, and a decision given on 30th July, 2014. It is clear from the inspector’s report that this referral was dealing with a quite different factual context than that dealt with by Kildare County Council in June, 2011.
39. The Board’s decision was that the activity on site did not come within the definition of agriculture set out in s. 2(1) of the Act as amended, and represented a change of use from the former use of agriculture to waste processing. Given the scale of the activity the Board considered that the change in use was material, was therefore development and not exempt. The Board was not satisfied that the activity was commercial in nature but this was not regarded as determinative. Of importance is the fact that the Board took the view that an EIA and AA were required.
The application for permission for an extension of the facility
40. On 10th July, 2013 the applicant made application for planning permission for an extension to the existing composting facility to add an additional enclosed area with a floor area of 6,671 sq. metres for the preparation and storage of horticultural and agricultural compost soil conditioners and the stabilisation of organic materials. The application proposed that the existing limit of 10,000 tonnes per annum of material would be increased by 12,000 tonnes, to a total of 22,000 tonnes per annum. An alteration and extension of the existing reception building on site was proposed as was an administration/staff building, seven enclosed concrete tunnels and an external plant in the form of bio-filtration system and maturation area. Modifications were required to the existing weighbridge, and new works to boundary fencing, drainage, waste water treatment system, parking and traffic controls and to the vehicular entrance. .
Application for an exemption from s. 172(3) of the PDA
41. As part of the application for permission to Kildare County Council, the applicant made a request to An Bord Pleanála for an exemption from the requirement to provide an EIS under s. 172(3) of the PDA: (Board Reference PL.09.EA 2004). An inspector’s report was also obtained for this purpose. It is not necessary for me to analyse in any detail the content of this report save to note that at p. 7 the inspector, having referred to the decision of the Board in reference 09.RL.3029 that the activities on site were development and not exempted development, said:
“… it is considered that there is unauthorised development currently on the site. It is therefore possible that the current application may be for an extension to/ expansion of an unauthorised development. The issue may also arise regarding retention permission and EIS/substitute consent process.”
42. Later in his report (p. 11) the inspector noted that the planning status of the existing development “is not clear” and recommended that the Board not grant the exemptions sought.
43. The Board gave its decision on 6th March, 2014 and refused the exemption from the requirement to furnish an EIS.
44. Following the decision of An Bord Pleanála with regard to the EIS the applicant submitted an EIS on 31st October, 2014 but on 23rd December, 2014 Kildare County Council refused permission. It is the decision of An Bord Pleanála on the appeal from that decision that is challenged in the present application.
Retention application
45. One other planning application is relevant. The applicant applied to Kildare County Council for retention permission in respect of the underground storage tanks on 2nd May, 2014. Permission was granted subject to conditions on 26th June, 2014, and this was appealed by a third party to An Bord Pleanála which on 31st December, 2014 refused to grant retention permission, ref: PL.09.243638, having regard to the previous determination of the Board (references 09.RL.3029, 09.RL3045 and 09.RL3216) in respect of the activities on the site. The Board came to the conclusion that:
“the proposed retention of the development would facilitate the consolidation and intensification of this use. In these circumstances, it is considered that it would be inappropriate for the Board to grant planning permission for the proposed retention of the development.”
Summary of planning decisions
46. An Bord Pleanála therefore had considered the activity and works on a number of occasions, and gave three determinations under s. 5 of the PDA, a decision with regard to the exemption under s. 172(3), and had refused the application for retention permission on appeal on 31st December, 2014. Therefore, in the period between 2012 and the end of 2014 the Board engaged a number of extensive analyses of the facility, and issued five determinations or decisions which remain unchallenged, and are now not capable of being challenged. Each of these, and taken together, amount to the conclusion that the activity and works on site are development which do not have the benefit of planning permission, and are not exempt.
47. In each case the applicant had engaged fully with the evidence and made substantial submissions and replying submissions. In each the relevant planning history and the s. 5 declarations made by Kildare County Council were actively engaged.
Engagement by the Board of section 138
59. Section 138 of the Act, as amended and substituted by s. 24 of the Planning and Development (Strategic) Infrastructure Act 2006, vests in the Board the power to dismiss an appeal in certain circumstances without engaging in full with the facts as follows:
“(1) The Board shall have an absolute discretion to dismiss an appeal or referral—
(a) where, having considered the grounds of appeal or referral or any other matter to which, by virtue of this Act, the Board may have regard in dealing with or determining the appeal or referral, the Board is of the opinion that the appeal or referral—
(i) is vexatious, frivolous or without substance or foundation, or
(ii) is made with the sole intention of delaying the development or the intention of securing the payment of money, gifts, consideration or other inducement by any person,
Or
(b) where, the Board is satisfied that, in the particular circumstances, the appeal or referral should not be further considered by it having regard to—
(i) the nature of the appeal (including any question which in the Board’s opinion is raised by the appeal or referral), or
(ii) any previous permission which in its opinion is relevant.
(2) A decision made under this section shall state the main reasons and considerations on which the decision is based.
(3) The Board may, in its absolute discretion, hold an oral hearing under section 134 to determine whether an appeal or referral is made with an intention referred to in subsection (1)(a)(ii).”
60. The Board expressly invoked s. 138(1)(b)(i) in its decision of 8th June, 2015, and took the view that the nature of the appeal and previous decisions were such that the appeal should not be further considered by it.
61. The applicant argues that the decision by the Board to dismiss the appeal without further consideration and without considering the substance of the case amounts to an impermissible exercise of the statutory power. The applicant relies on the authorities starting with The State (Lynch) v. Cooney [1982] 1 I.R. 337 regarding the exercise of a statutory function by an administrative body. The principles are well established and in broad terms a decision-making power must be exercised bona fide and in a manner which is not unreasonable and is factually sustainable. In Kiely v. Kerry County Council [2015] IESC 97, [2016] 1 I.L.R.M. 221 McKechnie J. with whom Denham C.J. and O’Donnell J. agreed, identifies the judgment of Henchy J. in The State (Lynch) v. Cooney as the starting point and described the principles “in shorthand” as requiring “the opinion reached be bona fide held, factually sustainable, and not unreasonable”. (para. 70)
62. The principle is that, even when a person or body is entitled as a matter of statute to make a decision in its absolute discretion, the exercise of the statutory power must comply with certain basic requirements of fairness, and “accord with the statutory parameters within which the underlying power is conferred”. Mc Kechnie J. identified this as a fourth requirement viz. “that the decision does not breach the legislative framework within which the power is given”. (para. 71)
63. The same approach is found in the earlier judgment of Hogan J. in Cork Institute of Technology v. An Bord Pleanála [2013] IEHC 3, [2013] 2 I.R. 13 where he identifies the requirement that the statutory decision maker has “first correctly defined the relevant terms … .”
64. Cork Institute of Technology v. An Bord Pleanála involved the question of whether the applicant third level institution was a “voluntary organisation” and Hogan J. considered that, while Article 157(1) of the Planning Regulations 2001 involved a degree of subjective appraisal by the decision maker, there was an obligation to “act bona fide and in a manner that is not unreasonable and factually sustainable”. He relied on State (Lynch) v. Cooney and on Kiberd & Anor. v. Hamilton [1992] 2 I.R. 257. As Hogan J. noted, these principles have been emphatically restated in the judgment of Fennelly J. for the Supreme Court in Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297.
65. I accept as a matter of general principle that the exercise of the power to dismiss an appeal is one that should be carefully exercised and the discretion of the Board is neither unfettered nor immune from review. This arises also from the fact that the dismissal of an appeal must be for stated reasons and considerations: s. 138(2): the decision should state “the main reasons and considerations” on which the decision is based.
66. Further, because a decision to invoke the power undoubtedly will impact on the rights and obligations of the respective parties, the general principles that govern the review of administrative decision making are applicable.
67. No authority has been identified regarding the operation of s. 138, but I consider that as a matter of first principle, arising from the nature of the power, the statutory power is one that must be engaged only when the matter is clear, and for good reason, and only if the decision maker has correctly formulated the question before it.
A summary dismissal?
68. The applicant’s primary challenge in the judicial review is that the decision to deal with the matter in what is termed a “summary” manner was not within the competence of the Board or was done without due process or for good reason.
69. To describe, as does the applicant, the statutory power of the Board as permitting it to “dismiss summarily” an application seems to me a wrong characterisation. A summary dismissal of an application involves the decision maker coming to the conclusion that an answer is clear cut, and requires neither detailed analysis nor substantial legal argument.
70. The approach of An Bord Pleanála in the present case was not “summary” if by this is meant that the Board did not fully consider the matter before it. The evidence shows that it had before it a considerable amount of material and a number of recent, clear, unassailable and relevant planning decisions. In its terms the decision rested upon prior decisions of An Bord Pleanála that planning permission did not exist for the existing facility it had characterised as a “waste management facility” and not one which could be treated as exempt, and also because the existing facility required an EIA and AA because of the nearby Nore SAC.
71. The Board was faced with a choice: treat the application as one in respect of which the answer was capable of being arrived at from the evidence before it, or invite further submissions and evidence and appoint an inspector. The Board took the view that it would not give any further consideration to the application for an extension as the planning status of the existing facility was already clear. It also considered that it was not competent to consider the application as one for retention having regard to the fact that an EIA and AA were required.
72. The decision of the Board was reasoned and based firmly in the recent, relevant, clear and detailed planning history regarding the site. It was not taken as a result of a “summary” approach to this evidence. Therefore, this argument fails.
Relevant considerations?
73. The applicant argues that the Board was not entitled to come to the decision under s.138(1)(b)(i) having regard to the planning history of the site and because of the extant and relevant s. 5 declarations made by Kildare County Council by which the works and activities on site were declared not to be development, or to be exempt.
74. As a matter of fact, the reports of the inspectors and the other documentation before the Board, including its own decisions made between 2013 and the end of 2014, all contained references to and details of declarations made by Kildare County Council. The Board therefore did have regard to the prior decisions made by Kildare County Council. Its own decisions made express reference to the Kildare County Council files, and the Board direction of 3rd June, 2015 expressly recited that it did have regard to the planning history and to those s. 5 declarations which were specifically identified.
75. The Board had made three declarations that development had occurred in respect of which planning permission did not exist. There was a separate but related finding that because an EIA and AA were required was a matter of law, an exemption could not exist. The decision of the Board was one which flowed logically from the previous s. 5 declarations. I do not go as far to say that the decision flowed inevitably or inexorably from the previous s. 5 declarations as the Board did have conflicting decisions before it which it was required to and did, in fact, reconcile. The reconciliation primarily occurred in the context of these applications for s. 5 declarations before it, and the application for exemption from the requirement to prepare an EIS.
76. The applicant bears the burden of proving that the Board failed to have regard to relevant considerations: McMahon J. in Klohn v. An Bord Pleanála [2008] IEHC 111, [2009] I I.R. 59, Charleton J. in Weston Limited v. An Bord Pleanála [2010] IEHC 255 and Finlay P. in Comhaltas Ceoltóirí Éireann v. Dun Laoghaire (Unreported, High Court, Finlay P., 14th December, 1977).
77. The applicant has not established evidence which leads me to the conclusion that the matters recited as having been considered by the Board were not in fact considered by it.
The interplay between the various s. 5 declarations
78. The s. 5 declarations made by Kildare County Council and the later ones made by An Bord Pleanála in each case are now not capable of being challenged. Insofar as a conflict arises, the applicant argues that the Board was not competent to make a determination which favoured one decision over another.
79. That analysis fails to have regard to the fact that An Bord Pleanála expressly determined the applications before it in the light of the evidence before it that the nature and extent of the activity had changed.
80. The corollary of the argument is that no one of the s. 5 declarations can be said to prevail.
81. I reject the argument that the Board predetermined its decision by relying on its previous s. 5 declarations. In West Wood Club Limited v. An Bord Pleanála [2010] IEHC 16 Hedigan J. considered that it was “inevitable” that the Board would have regard to previous s. 5 declarations and that it was correct for it to do so. That is not to say that the s. 5 declarations would pre-determine the result of the extension application, but rather the Board was entitled to take the view that there were extant, unchallenged and final determinations which found that the activity on site was development and not exempt development. Indeed, Hedigan J. took the view that:
“It was proper that the respondent had regard to a relevant planning decision which it made only a relatively short time before … in the interests of consistency. That was a decision made following a formal process and which was entered in the planning register. Once entered it became part of the planning history of the site and was properly taken into consideration … .” (para. 34).
82. It was not only proper, but also in my view reasonable, for the Board to have regard to its previous decisions, and I am not satisfied that it could be said that the Board ignored the s. 5 declarations of Kildare County Council. It had departed from those for sound reasons based on the evidence before it, and therefore I consider that it had before it and did actually consider all relevant information, and properly did have regard to, and was influenced by, determinations that it had made in the previous processes which were recent. Hedigan J. in West Wood Club Limited v. An Bord Pleanála noted the fact that a previous s. 5 declaration was recent, as relevant.
83. I do not accept the argument of the applicant that the Board ought to have favoured the earlier s. 5 declarations over the later ones, and while such an argument might have been made in a challenge to the s. 5 declaration made by An Bord Pleanála, such a challenge was not made, and the s. 5 decisions of the Board are valid and not now open to challenge.
84. The matter could be said to be a question of weight. The Board did not overturn, ignore or disagree with Kildare County Council because it made its determinations in the light of the then current activity on site in respect of which it had ample evidence, and substantial and extensive submissions by the applicant in regard to the authority and force of the previous decisions.
85. The inspector in his report in 09.RL.3216 set out a view that the activity on site had “increased substantially”.
86. Further, the applicant is wrong as a matter of fact, as Kildare County Council in refusing permission for the extension had relied inter alia on the determinations of the Board. Both Kildare County Council and the Board took the same approach to the nature of the activity in 2014, that it was development which was not exempt.
87. It is also noteworthy that Kildare County Council sent a warning letter in June, 2012 and while enforcement proceedings have not been progressed thereafter, Kildare County Council seems to have taken the view that the activity in June, 2012 on the site was not authorised.
88. In submissions made to An Bord Pleanála on the first s. 5 application the applicant by its solicitors argues that the Board was bound by the decisions of Kildare County Council, especially by the decision made in June, 2011. The argument that the Kildare County Council declarations created a form of “res judicata” was rejected by the Board. I do not propose considering whether a true res judicata could be said to exist, as for the present purposes the significant factor is that the Board considered that argument and rejected it which, for the purpose of the present application, means as a matter of fact that the Board did fully engage with the 2011 decision, and the effect or force it might have or should be given, and that decision of the Board was not challenged.
89. Further, from the perspective of European law, and having regard to the fact that the Board has determined that the development did require an EIA and AA and refused an application by the applicant for an exemption from the requirement that an EIS be furnished, it is not possible as a matter of law for any planning authority to determine that the activity could be exempt.
90. It is not argued by the Board that the mere fact that the declarations made by it post-dated the three s. 5 declarations by Kildare County Council means as a matter of law that the Board decisions must prevail as being later in time. Such a simplistic approach to the existence of differing conclusions could not be correct without more analysis. That the activities had changed is borne out by the evidence before the Board, and the decision was made in that context.
91. The High Court has in a number of cases decided that it is within the competence of a planning authority not to make a determination that would “complement an unauthorised use”: per Hedigan J. in West Wood Club Ltd. v. An Bord Pleanála [2010] IEHC 16 at para. 62, or involve the “facilitation of unauthorised development”: per Hedigan J. in Frank Harrington Limited v. An Bord Pleanála [2010] IEHC 428 at para. 14. The applicant makes the argument that the Board was not entitled, having regard to the effect of the previous decisions under s. 5, to treat the existing works and activities as unauthorised. I will return later to the case law on s. 5, but for the present I consider that the Board was competent to decide on the evidence before it that, having regard to its own previous decisions, including decisions under s. 5, that development had taken place on the site, and that that development was not exempt, that in the absence of an extant planning permission it ought not to give further consideration to an extension application as what was sought was an extension of activities which did not have the benefit of planning permission, or which were not authorised.
Failure to give reasons?
92. The applicant claims also that Board failed to give adequate reasons. That reasons must be given for the decision is express in the Act, but there remains the argument that the Board failed to give reasons of sufficient detail to meet the threshold required as a matter of law. The authorities establish that the reasons given by an administrative body for a decision must be sufficiently clear and detailed to enable a person receiving the decision to understand the basis on which it was made, and to make an informed decision whether to appeal or seek review.
93. In Grealish v. An Bord Pleanála [2006] IEHC 310, [2007] 2 IR 536 O’Neill J., having reviewed the case law, including the authoritative decision of Kelly J. in Mulholland & Anor. v. An Bord Pleanála & Ors. (No. 2) [2005] IEHC 306, [2006] 1 IR 453, concluded that it was not necessary for a decision making authority “to give a discursive judgment”. A similar view was taken by Birmingham J. in Mulhaire v. An Bord Pleanála & Anor. [2007] IEHC 478 where he identified the test as being whether a person receiving a decision is left “in any doubt as to why the decision went against him”. (p. 13)
94. The Board gave coherent and adequate reasons for its decision. This ground is not made out.
Opportunity to be heard?
95. The applicant also argues that the approach of the Board was erroneous in that it did not afford the applicant any opportunity to address it prior to making a decision to refuse to further engage with the appeal. That a person whose interests are likely to be impacted by the decision has a right to be heard is now well established in law, and was firmly restated by the Supreme Court in Dellway Investments Ltd.& Ors. v. National Asset Management Agency (NAMA) & Ors. [2011] IESC 4, [2011] 4 I.R. 1 The authorities recognise a fundamental underlying requirement that fairness of process requires that a person not be excluded from addressing a decision maker when its determination is likely to impact on proprietary rights or interests.
96. In reply the Board argues that the statutory power contains no provision that requires or permits the Board to notify an applicant that it is considering making a determination under section 138.
97. In West Wood Club Ltd. v. An Bord Pleanála Hedigan J. considered a broadly similar argument, that an applicant should have been notified that the Board intended to take a s. 5 declaration into account, and invited, or at least permitted, observations on that intended approach. At para. 38 of his judgment Hedigan J. rejected that argument on the factual basis that “it was a decision well known to all and which the applicants needed no invitation to argue”. He relied on a judgment, Stack v. An Bord Pleanála (Unreported, High Court, Ó Caoimh J., 7th March, 2003) as follows:
“I am satisfied that the matter as represented in the earlier decision on what has been referred to as the historic file was not in reality a new matter that required the application of s.13(2) of the Act of 1992 or any specific notification to the applicants insofar as the same was taken into consideration by the Board. The earlier decision is a matter of public record and was so at the time and I am satisfied that it was a matter of which knowledge must at least be imputed to the applicants as the decision in question was made before the appeal in the instant case.”
98. Hedigan J. was satisfied that the s. 5 declaration in question related to the same site and was legitimately taken into consideration by the Board when reaching its conclusion. He went on to say that the third party submissions “raised no new issues”, and were “broadly the same as those which were raised against the original application to the notice party”. (para. 40)
99. On the other end of the spectrum, in McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 the adverse conclusion drawn by the Board was held to have been wrongly based on a submission received from a residents group that was not furnished to the applicant.
100. The question, it seems to me, is whether there were material matters before the Board of which the applicant was not aware, or had not been given an opportunity to address, and which in the circumstances might have triggered an obligation on the Board to invite further submissions.
101. As a matter of fact the Board did have before it submissions from the applicant regarding the planning question before it. There were no new factual matters before the Board. Therefore, I consider that the Board could, as a matter of law, have dealt with the matter in the way it did without affording a fresh opportunity to the applicant to address it on its approach. The matter was an appeal by the applicant from a refusal by the local authority, so one must assume that the applicant had furnished to the Board all material it considered necessary and relevant to its consideration. The applicant had also made submissions on the s. 5 applications.
The legal nature of a declaration under section 5
102. The applicant argues that the Board has no jurisdiction to determine that a development is unauthorised, that this is a matter for a court. The applicant argues that the Board in essence asked the wrong question or identified the incorrect approach to the s. 5 declarations.
103. The relevant provisions of s. 5 of the PDA are:
“5.—(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.
(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.
104. The import of a determination under s. 5 of the PDA has been considered in a number of cases. In Grianán an Aileach Interpretative Centre Company Limited v. Donegal County Council [2004] IESC 43, [2004] 2 IR 625, Keane C.J. said:
“It would seem to follow that the question as to whether planning permission is required in this case necessarily involves the determination of the question as to whether the proposed uses would constitute a ‘development’, i.e., a question which the planning authority and An Bord Pleanála are empowered to determine under s. 5 of the Act of 2000.” (para. 26)
105. He later went on to say, adopting the reasoning in McMahon & Ors. v. Dublin Corporation [1996] 3 I.R. 509 and Palmerlane Limited v. An Bord Pleanála [1999] 2 ILRM 514, that:
“a question as to whether the proposed uses constitute a ‘development’ which is not authorised by the planning permission is one which may be determined under the Act of 2000 either by the planning authority or An Bord Pleanála.” (para. 28)
106. A declaration made under s.5 is not a determination that activity is authorised. It is a determination pursuant to the statutory power of a local authority or An Bord Pleanála that activity is development, and where appropriate that development is or is not exempt. It is part of the planning history of a site. The application under s. 5 is an application to clarify the planning status of an activity or works. This is because whether a development is “authorised” can and often does involve the question of whether it has planning permission, but can also engage the question whether it is exempt, or if there is a relevant pre-1964 user.
107. The statutory function of the planning authority or the Board under s. 5 is not an enforcement role. Finlay Geoghegan J. in Roadstone Provinces Limited v. An Bord Pleanála [2008] IEHC 210, at para. 21 of her judgment said the following:
“The respondent has no jurisdiction on a reference under s.5 (4) of the Act to determine what is or is not ‘unauthorised development’. It may only determine what is or is not ‘development’. Hence, a planning authority, such as the notice party, cannot refer a question under s.5 (4) as to whether the works or proposed works or use constitutes unauthorised works or use and hence unauthorised development. Determination of what is or is not ‘unauthorised development’ will most likely be determined by the courts where a dispute arises on an application under s. 160 of the Act.”
108. This dicta of Finlay Geoghegan J. is regularly quoted as authority for the proposition that the jurisdiction under s. 5(4) of the Act is one which is confined to determining whether works or use is development.
109. Finlay Geoghegan J. was considering the import of a s. 5 declaration where what was challenged was the decision of the respondent that the expansion southward of a quarry was development and not exempted development. The decision was quashed by certiorari as there was pre-1964 use and no determination had been made whether there was an identified factual difference between that use and current use. The judgment does not go so far as to say that the consequence of a s. 5 declaration can never be understood to mean that a development is not one authorised by planning permission. The judgment of Finlay Geoghegan J. is authority for the proposition that development which does not have the benefit of a planning permission is not always in legal terms a development which is “unauthorised”, and the jurisdictional limit of s. 5 is to determine whether there is development, after which there arises the second question whether permission is required or exists.
110. Hogan J. giving the judgment of the Court of Appeal in Killross Properties Ltd. v. Electricity Supply Board [2016] IECA 207 explained the conceptual difficulty as follows:
“The essential difficulty which is presented here is that the concepts of development, exempted development and unauthorised use are all, to some extent, inter-related. It is true that, as Finlay Geoghegan J. held in Roadstone Provinces Ltd. v. An Bord Pleanála [2008] IEHC 210, the Board has no jurisdiction on a s. 5 reference to determine whether or not there was unauthorised development. Yet if the Board (or, as the case may be, a planning authority) rules that a particular development is not exempted development, the logical corollary of that decision is that planning permission is required. In practice, there is often only a very slender line between ruling that a development is not exempted development since this will generally – perhaps, even, invariably – imply that the development is unauthorised on the one hand and a finding that a particular development is unauthorised on the other. Conversely, where (as here) the Board (or the planning authority) rules that the development is exempt, this necessarily implies that the development is lawful from a planning perspective since, by definition, it has been determined that no planning permission is required.” (para. 20)
111. A development is not unauthorised merely on account of the fact that an activity or works are found to be development. The development may, as in the case of a quarry, the context in which Roadstone Provinces Limited v. An Bord Pleanála was decided, be exempt from the requirement to obtain planning permission if it is a continuation of pre-1964 user. In such cases the development is not unauthorised although it is development. A development may also be found to have occurred but to be exempt.
112. However, it must be the case that, absent an argument that there is relevant pre-1964 use, if works or activity are declared in the s. 5 process to amount to development and if a determination is made that it is not exempt, then the inevitable conclusion is that the development does not have the benefit of planning permission, is not authorised in planning terms, and is “unauthorised”.
113. I can find no error in the approach of the Board to the s. 5 declarations which in factual terms meant that the activity was not authorised and not exempt. This follows also from the fact that a s. 5 declaration is by Statute part of the planning history of the site.
Statutory character of s.5 as part of history: s. 5(5)
114. A declaration under s. 5 may constitute evidence or a finding on which a subsequent decision maker may make a determination that works or activity are not authorised, i.e. that works or activity do not have the benefit of planning permission.
115. That a declaration under s. 5 is part of the planning history of a site and constitutes evidence on which a determination may be made that works or use is unauthorised is apparent from the approach of Hedigan J. in West Wood Club Limited v. An Bord Pleanála where the Board had under s. 5 declared that the use of the premises was development which was not exempted development. The Board expressly took the view that the use was “unauthorised for use as a licensed premised”. Hedigan J. regarded the s. 5 declaration as “part of the planning history of the site, as mandated by s. 5(5) of the Act of 2000” (para. 34). He held that the respondent was correct to have regard to it when determining the appeal before it and that it was “inevitable” that the s. 5 declaration would be taken into account and that it was “proper” that the Board had regard to it as a relevant decision made in the relatively recent past.
116. The Board in the present case determined that the activity and works on site were unauthorised in the sense in which that term is generally used, i.e. that there existed no planning permission, no exemption, no pre-1964 status or argument or contention that such status fell for consideration. There is no flaw in that approach.
117. Further, the decision under challenge in the present case is not a declaration made under s. 5 but rather a substantive planning appeal, and there is no jurisdictional limit on the power of the Board to make a determination in that context that works or activity are unauthorised. The planning history is part of the nexus of fact that could lead to that conclusion. The s. 5 declarations are evidence of a finding by the Board and by Kildare County Council regarding the planning status of the works and activity, and there being no argument or evidence of pre-1964 use which might have precluded such a consideration or determination, and there being separately a finding that an exemption did not exist, the Board was entitled to conclude that the activity was unauthorised in planning terms. No other possible means by which it could be authorised was argued before the Board in any of the applications before it or in the appeal now under challenge.
118. For that reason, it seems to me that the argument of the applicant that the Board was fundamentally incorrect in its approach to the planning history and especially to the extant declarations made under s. 5 must fail. I reject the argument of the applicant that the Board fell into error in coming to the view that the works and activity were unauthorised.
Were the facts before the Board unclear or contradictory?
119. The applicant argues that the Board had before it contradictory evidence and that it was not therefore competent to proceed to conclusions without further considering and weighing those facts. The respondent argues that it was well aware of the determinations made under s. 5, and the import of these, and had extensive reports from its inspectors, had already engaged in the application for an exemption from an EIS, and had refused the request for an oral hearing having determined that there was sufficient information available in writing. The Board considered that it had sufficient information and that the history of the site was amply dealt with in previous reports and findings, so that it did not need a further report from an inspector under section 146(1).
120. I turn now to consider whether it could be said that there was materially contradictory evidence before the Board which mandated that it approach the evidence with caution, if necessary by permitting or requiring that it be further interrogated.
121. Having regard to the fact that the application before me is an application for judicial review, it is not necessary for me to analyse the differences in the factual matrices between the facility as it operated at the time the s. 5 declarations were made by Kildare County Council and those that prevailed at the time of the Board’s decision. However, some factors are of note, including the fact that the decisions of the Board were supported by four separate reports of its inspectors, and there is no evidence before me that any such analysis was before the local authority. More importantly from the point of view of the decisions of the Board is the fact that it had taken a view arising from the fact that the site was materially close to the Nore SAC relating to the requirement for an EIA and AA, and once it had been determined that these assessments were required, the development could not be said to be exempt.
122. The Board had evidence, in the form of s. 5 declarations made by it in the context of the contemporary activity on site, which were unchallenged and unassailable. Its approach to the difference between the declarations made by the local authority was to require detailed analysis and submissions by an inspector, other authorities such as water authorities, and the determinations made by the Board under s. 5 were made following a full consideration of all the facts. It cannot be said that the Board did not have evidence or reasons on which it could take a reasoned and legally correct approach to the factual differences. The Board did not disregard the s. 5 declarations made by Kildare County Council, but it came to its own view in a robust and procedurally fair manner as to the planning status of the activities and works, and thereby resolved the conflict of fact.
Conclusion and summary
123. Recent decisions of the High Court have confirmed that the approach of the Supreme Court in O’Keeffe v. An Bord Pleanála & Ors. [1993] 1 I.R. 39 remains the correct approach in an application for judicial review of a decision of the Board. Notably, in Ratheniska Timahoe and Spink (RTS) Substation Action Goup & Anor. v. An Bord Pleanála [2015] IEHC 18, Haughton J. said that the test in O’Keeffe v. An Bord Pleanála & Ors. was “appropriate, and continues to bind the High Court at least in its review of decisions of the Board”. (para. 76)
124. In Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, Hedigan J. identified a similar approach on review, namely whether any basis had been shown which would support the intervention of the court:
“Once there is any reasonable basis upon which the planning authority or the Board can make a decision in favour of or against a planning application or appeal, or can attach a condition thereto, the Court has no jurisdiction to interfere (see Weston Limited v. An Bord Pleanála & Anor. [2010] IEHC 255).” (para. 8.2)
125. He went on to conclude on that point:
“No basis has been laid that could support the proposition that the Board’s decision in this regard was so irrational as to require the court to intervene.” (para. 8.5)
126. McDermott J. came to a similar decision in Sweetman & The Swans and The Snails Ltd. v. An Bord Pleanála & Anor. [2016] IEHC 277, where he said that:
“If the Board made the decision on the basis of material or evidence before it, which was reasonably capable of supporting its view, the decision must stand and is not to be regarded as unreasonable or irrational.” (para. 93)
127. I find that that the Board was entitled to come to a conclusion that the changed activities constituted development which was not exempt, and that it had sufficient evidence before it to support the decision.
128. I do not consider, therefore, that the Board came to its decision without considering the facts, without giving reasons and without weighing those facts.
129. The Board did not exercise its jurisdiction to dismiss the appeal by treating it as vexatious or frivolous which it is entitled to do under s. 138(1)(a)(i) or that the appeal comprised a ransom demand in s. 138(1)(a)(ii). The decision was made on a different statutory basis having regard to the nature of the appeal and the previous permission which in its opinion was relevant. Four different inspectors had given extensive reports on the facility, three of which had been prepared in the twelve months before the Board came to its determination. It cannot be said that the Board acted irrationally or unreasonably in not requisitioning a further report from an inspector, and there is no evidence before me that would suggest that different factual or planning matters had arisen in the months leading up to its decision. Further, the applicant had the reports and did in fact address the conclusions in its application to Kildare County Council for permission. There is no stateable argument in those circumstances that the Board relied solely on the declarations given by it under s. 5, and a full consideration of the factual nexus giving rise to the application and a full analysis of the existing facility was before the Board. It is also to be observed that the appeal to the Board, which resulted in the subject matter of the present application for review was made on 28th January, 2015, only weeks after the decision by the Board on 31st December, 2014 to refuse permission for the retention of the underground tanks.
130. The decision arrived at by the Board was one that flowed from previous decisions but logically and lawfully did so, and there is no irrationality in that approach. The Board could not lawfully ignore its previous recent determinations and refused to grant planning permission as to do so would permit an impermissible graft upon a facility which it had previously determined required planning permission and environmental assessment. The decision of the Board was not preordained but was, in a sense, inevitable.
131. I dismiss the application for review for the reasons stated.