Planning Permissions
Planning and Development Act
Availability of documents relating to planning applications.
38.—F431[(1) Where a planning authority gives its decision in respect of a planning application the following documents shall be made available by the authority within 3 working days by placing the documents on its website, and may also make available such documents both in electronic form and for inspection and purchase by members of the public during office hours:]
(a) a copy of the planning application and of any particulars, evidence, F432[environmental impact assessment report], other written study or further information received or obtained by the authority from the applicant in accordance with regulations under this Act;
(b) a copy of any submissions or observations in relation to the planning application which have been received by the authority;
(c) a copy of any report prepared by or for the authority in relation to the planning application;
(d) a copy of the decision of the authority in respect of the planning application and a copy of the notification of the decision given to the applicant; and
(e) a copy of any documents relating to a contribution or other matter referred to in section 34 (5).
F433[(1A) Details of any telephone numbers of the applicant or addresses for communication with the applicant in electronic form provided by or on behalf of the applicant shall be taken not to be part of the planning application and shall not be made available by a planning authority to members of the public.]
(2) Without prejudice to the Freedom of Information Act, 1997, and the European Communities Act, 1972 (Access to Information on the Environment) Regulations, 1998 (S.I. No. 125 of 1998), and any regulations amending those regulations, F434[…] the documents referred to under subsection (1) shall be available for inspection for a period of not less than 7 years after the making of the decision by the authority.
F435[(3)(a) Where a planning application is not accompanied by an environmental impact assessment report, any other document referred to in subsection (1)(a) or (b) which is received or obtained by a planning authority shall be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document until a decision is made on the application and may also be made available by the authority by placing the document on the authority’s website for inspection or in other electronic form.
(b) Where a planning application is accompanied by an environmental impact assessment report—
(i) a document referred to in subsection (1)(a) which is received or obtained by a planning authority shall be placed on its website for inspection and be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document and may also be made available for inspection by the authority in other electronic form,
(ii) a document referred to in subsection (1)(b) which is received or obtained by a planning authority shall be made available for inspection and purchase by members of the public during office hours of the authority from as soon as may be after receipt of the document until a decision is made on the application and may also be made available by the authority for inspection by placing the document on the authority’s website or in other electronic form, and
(iii) a document referred to in subsection (1)(c), (d) or (e) which is received or obtained by a planning authority shall be placed on its website for inspection within 3 working days of the giving of the decision in respect of the application.]
F436[(3A) Without prejudice to the Freedom of Information Act 2014, and the European Communities (Access to Information on the Environment) Regulations 2007 to 2014, and any regulations amending those regulations, and the Data Protection Acts 1988 to 2018, the documents placed on the planning authority’s website pursuant to subsection (3)(b) shall be maintained and available for inspection thereon in perpetuity.]
(4) Copies of documents under this section shall be available for purchase on payment of a specified fee not exceeding the reasonable cost of making such a copy.
(5) At the end of the period for the availability of documents referred to in subsection (2), a planning authority shall retain at least one original copy of each of those documents in a local archive in accordance with section 65 of the Local Government Act, 1994 .
(6) The Minister may prescribe additional requirements in relation to the availability for inspection by members of the public of documents relating to planning applications.
(7) This section shall apply in respect of any application made to a planning authority after the commencement of this section.
Annotations
Amendments:
F431
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 25, S.I. No. 436 of 2018.
F432
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. 20, in effect as per reg. 2(1).
F433
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 27(b), S.I. No. 477 of 2010.
F434
Deleted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 191, S.I. No. 174 of 2018.
F435
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(b), in effect as per reg. 2(1).
F436
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(b), in effect as per reg. 2(1).
Modifications (not altering text):
C82
Application of section and regulations made thereunder restricted (1.05.2007) by European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), reg. 4(2)(a).
Scope
4. (1) These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.
(2) Notwithstanding—
(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000) and any regulations made thereunder,
…
environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.
Editorial Notes:
E187
Power pursuant to subs. (6) exercised (22.05.2020) by Planning and Development Act 2000 (Section 38) Regulations 2020 (S.I. No. 180 of 2020).
E188
Previous affecting provision: subs. (1) amended (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 11(a), in effect as per reg. 2(1); subsection substituted as per F-note above.
E189
Previous affecting provision: subs. (1) substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 27(a), S.I. No. 477 of 2010; substituted as per F-note above.
E190
Previous affecting provision: subs. (2) amended (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 11, S.I. No. 525 of 2006; amendment deleted as per F-note above.
Supplemental provisions as to grant of permission.
39.—(1) Where permission to develop land or for the retention of development is granted under this Part, then, except as may be otherwise provided by the permission, the grant of permission shall enure for the benefit of the land and of all persons for the time being interested therein.
(2) Where permission is granted under this Part for a structure, the grant of permission may specify the purposes for which the structure may or may not be used, and in case the grant specifies use as a dwelling as a purpose for which the structure may be used, the permission may also be granted subject to a condition specifying that the use as a dwelling shall be restricted to use by persons of a particular class or description and that provision to that effect shall be embodied in an agreement under section 47.
(3) (a) Where permission to develop land is granted under this Part for a limited period only, nothing in this Part shall be construed as requiring permission to be obtained thereunder for the resumption, at the expiration of that period, of the use of the land for the purpose for which it was normally used before the permission was granted.
(b) In determining for the purposes of this subsection the purposes for which land was normally used before the grant of permission, no account shall be taken of any use of the land begun in contravention of this Part.
(4) Notwithstanding anything in this Part, permission shall not be required under this Part, in the case of land which, on 1 October, 1964, was normally used for one purpose and was also used on occasions, whether at regular intervals or not, for any other purpose, for the use of the land for that other purpose on similar occasions after 1 October, 1964.
Limit of duration of permission.
40.—(1) Subject to subsection (2), a permission granted under F438[this Part or Part XXI], shall on the expiration of the appropriate period (but without prejudice to the validity of anything done pursuant thereto prior to the expiration of that period) cease to have effect as regards—
(a) in case the development to which the permission relates is not commenced during that period, the entire development, and
(b) in case the development is commenced during that period, so much of the development as is not completed within that period.
(2) (a) Subsection (1) shall not apply—
(i) to any permission for the retention on land of any structure,
(ii) to any permission granted either for a limited period only or subject to a condition which is of a kind described in section 34(4)(n),
(iii) in the case of a house, shop, office or other building which itself has been completed, in relation to the provision of any structure or works included in the relevant permission and which are either necessary for or ancillary or incidental to the use of the building in accordance with that permission, or
(iv) in the case of a development comprising a number of buildings of which only some have been completed, in relation to the provision of roads, services and open spaces included in the relevant permission and which are necessary for or ancillary or incidental to the completed buildings.
(b) Subsection (1) shall not affect—
(i) the continuance of any use, in accordance with a permission, of land,
(ii) where a development has been completed (whether to an extent described in paragraph (a) or otherwise), the obligation of any person to comply with any condition attached to the relevant permission whereby something is required either to be done or not to be done.
(3) F437[In this section and sections 42 and 42A,], “the appropriate period” means—
(a) in case in relation to the permission a period is specified pursuant to section 41, that period, and
(b) in any other case, the period of five years beginning on the date of the grant of permission.
Annotations
Amendments:
F437
Substituted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3, part 8, item 1, S.I. No. 545 of 2009.
F438
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 14, S.I. No. 488 of 2022.
F439[
Power to vary appropriate period.
41. (1) Without prejudice to the powers conferred on them by F440[this Part and Part XXI] to grant a permission to develop land for a limited period only, in deciding to grant a permission under F440[section 34, 37, 37G, 37N or 293], a planning authority or the Board, as may be appropriate, may, having regard to the nature and extent of the relevant development and any other material consideration, specify the period during which the permission is to have effect, being a period—
(a) in the case of all development requiring permission, of not less than 2 years, and
(b) in the case of residential development requiring permission, of not more than 10 years,
and where the planning authority or the Board exercises, or refuses to exercise, the power conferred on it by this section, the exercise or refusal shall be regarded as forming part of the relevant decision of the authority or the Board under F440[section 34, 37, 37G, 37N or 293].
(2) Where an application for permission relates to a residential development comprising 10 or more houses—
(a) material considerations in subsection (1) may include any information available to the planning authority or furnished to it by the applicant concerning implementation by the applicant of any housing development in the previous 5 years, and
(b) an assessment by the planning authority of the likelihood of the proposed development being implemented within the appropriate period sought, being the appropriate period within the meaning provided for by section 40(3).]
Annotations
Amendments:
F439
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 26(1), S.I. No. 436 of 2018.
F440
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 15, S.I. No. 488 of 2022.
Modifications (not altering text):
C83
Section construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 14, 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 41 (power to vary appropriate period) of Act of 2000 during specified period
14. Section 41 of the Act of 2000 has effect during the specified period—
(a) as if “or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 37N,” where it first occurs, and
(b) as if “, or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “or 37N” where it last occurs.
Editorial Notes:
E191
Previous affecting provision: section amended (14.07.2015) by European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (S.I. No. 301 of 2015), reg. 5; section substituted as per F-note above.
E192
Previous affecting provision: section amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 12(a), S.I. No. 684 of 2006; substituted as per F-note above.
E193
Previous affecting provision: section amended (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 12(b), S.I. No. 684 of 2006; section substituted as per F-note above.
Power to extend appropriate period.
F441[42.— (1) F442[On application to it in that behalf, but subject to subsection (8),] a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that each of the following requirements is complied with:
F443[(a) (i) the authority is satisfied that—
(I) the development to which the permission relates was commenced before the expiration of the appropriate period sought to be extended,
(II) F444[…]
(III) substantial works were carried out pursuant to the permission during that period, and
(IV) the development will be completed within a reasonable time, ]
(b) the application is in accordance with such regulations under this Act as apply to it,
(c) any requirements of, or made under those regulations are complied with as regards the application, and
(d) the application is duly made prior to the end of the appropriate period.
(2) In extending the appropriate period under subsection (1) a planning authority may attach conditions requiring the giving of adequate security for the satisfactory completion of the proposed development, and/or may add to or vary any conditions to which the permission is already subject under section 34(4)(g).
(3) (a) Where an application is duly made under this section to a planning authority and any requirements of, or made under, regulations under section 43 are complied with as regards the application, the planning authority shall make its decision on the application as expeditiously as possible.
(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the planning authority to ensure that it shall give notice of its decision on an application under this section within the period of 8 weeks beginning on—
(i) in case all of the requirements referred to in paragraph (a) are complied with on or before the day of receipt by the planning authority of the application, that day, and
(ii) in any other case, the day on which all of those requirements stand complied with.
F443[(4) A decision to extend the appropriate period of a permission shall be made not more than twice under this section and a planning authority shall not further extend the appropriate period. Where a second decision to extend an appropriate period is made under this section, the combined duration of the 2 extensions of the appropriate period shall not exceed 5 years.]
(5) Particulars of any application made to a planning authority under this section and of the decision of the planning authority in respect of the application shall be recorded on the relevant entry in the register.
(6) Where a decision to extend is made under this section, section 40 shall, in relation to the permission to which the decision relates, be construed and have effect, subject to, and in accordance with, the terms of the decision.
(7) Notwithstanding subsection (1) or (4), where a decision to extend an appropriate period has been made by a planning authority prior to the coming into operation of this section, the planning authority, where an application is made to it in that behalf prior to the expiration of the period by which the appropriate period was extended, may further extend the appropriate period provided that each of the following requirements is complied with—
(i) an application is made in that behalf in accordance with regulations under section 43,
(ii) any requirements of, or made under, the regulations are complied with as regards the application, and
(iii) the authority is satisfied that the relevant development has not been completed due to circumstances beyond the control of the person carrying out the development.]
F446[(8) A planning authority shall not extend the appropriate period under this section in relation to a permission if an environmental impact assessment or an appropriate assessment would be required in relation to the proposed extension concerned.]
Annotations
Amendments:
F441
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 28, S.I. No. 405 of 2010.
F442
Substituted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(a)(i), in effect as per reg. 1(2).
F443
Substituted (9.09.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(1), S.I. No. 455 of 2021, as substituted (19.07.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 57(1), commenced on enactment as per subs. (2).
F444
Deleted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(a)(ii), in effect as per reg. 1(2).
F445
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 77, S.I. No. 214 of 2014.
F446
Inserted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(c), in effect as per reg. 1(2).
F447
Inserted (9.09.2021) by European Union (Planning) (Habitats, Birds and Environmental Impact) Regulations 2021 (S.I. No. 456 of 2021), reg. 2(b)(i), (ii), in effect as per reg. 1(2).
Modifications (not altering text):
C84
Section construed (23.12.2016 (date of enactment) for period to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(2)(a), S.I. No. 341 of 2017, as substituted (19.07.2017) by Planning and Development (Amendment) Act 2017 (20/2017), s. 1, commenced on enactment; and further construed (23.12.2016 (date of enactment) for period to 31.12.2021) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 28(2)(b), (c), S.I. No. 341 of 2017.
Amendment, etc., of section 42 (power to extend appropriate period) of Act of 2000
28. …
(2) During the period from the passing of this Act until 31 December 2021, section 42 of the Act of 2000 has effect—
[(a) as if the following subsection were inserted after subsection (1):
‘(1A) (a) “F447[Notwithstanding anything to the contrary in subsection (1) or (4) but subject to subsection (8)” for “Notwithstanding anything to the contrary in subsection (1) or (4)], a planning authority shall—
F447[(i) in relation to permission for development consisting of the construction of not less than 20 houses,]
(ii) upon application being duly made to the authority setting out the reasons why the development cannot be reasonably completed within the appropriate period,
further extend the appropriate period by such additional period not exceeding 5 years, or until 31 December 2021, whichever first occurs, but the authority shall only so extend that period where the authority—
(I) considers it requisite to enable the development to which the permission relates to be completed,
(II) is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2016 as apply to the application,
(III) is satisfied that any requirements of, or made under those regulations are complied with as regards the application,
(IV) is satisfied that the development to which the permission relates was—
(A) commenced, and
(B) substantial works were carried out,
before the expiration of the appropriate period or any extension of that period, and
(V) is satisfied that in the case of a permission—
(A) where the expiry of the appropriate period as extended occurred or occurs during the period from 19 July 2016 to the day preceding the day that section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 comes into operation, the application is duly made within 6 months of the said commencement date, or
(B) where the appropriate period as extended expires on or after the date of commencement of section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016, the application is duly made within the period prescribed for the purposes of section 43(2).’]
(b) as if in subsection (2) there were substituted “subsection (1) or (1A)” for “subsection (1)”, and
(c) as if in subsection (4) there were substituted “Except where subsection (1A) applies, a decision” for “A decision”.
Editorial Notes:
E194
Previous affecting provision: subs. (1)(a)(ii)(II) amended (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 77, S.I. No. 214 of 2014; substituted as per F-note above.
F448[ Power to extend appropriate period on application of NAMA.
42A.—F449[…]]
Annotations
Amendments:
F448
Inserted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3 part 8 item 2, S.I. No. 545 of 2009.
F449
Repealed (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 26(2), S.I. No. 436 of 2018.
Editorial Notes:
E195
Previous affecting provision: subs. (1) amended (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 78, S.I. No. 214 of 2014; section repealed as per F-note above.
E196
Previous affecting provision: subss. (1), (2) substituted and subs. (8) inserted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 29(a)- (c), S.I. No. 405 of 2010; section repealed as per F-note above.
E197
Previous affecting provision: subss. (1) and (2) substituted (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 238 and sch. 3, part 8, item 2, S.I. No. 545 of 2009; substituted as per E-note above.
F450[
Modification to operation of section 42 of Act of 2000 having regard to Covid-19
42B. During the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on 31 December 2023, section 42 shall be construed and have effect—
(a) as if the following subsection were inserted after subsection (1A):
“(1B) Notwithstanding anything to the contrary in subsection (1), (1A) or (4) a planning authority shall—
(a) as regards a particular permission in respect of a development, and
(b) upon application being duly made to the authority setting out the reasons why the development cannot be reasonably completed within the appropriate period,
further extend the appropriate period, as extended or further extended, by such additional period not exceeding 2 years or until 31 December 2023, whichever first occurs, but the authority shall only so extend that period where the authority—
(i) is satisfied that an environmental impact assessment or an appropriate assessment would not be required in relation to the proposed extension of the appropriate period,
(ii) considers that the extension is required to enable the development to which the permission relates to be completed,
(iii) is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2021 as apply to the application,
(iv) is satisfied that any requirements of, or made under, those regulations are complied with as regards the application,
(v) is satisfied that the development to which the permission relates was—
(I) commenced, and
(II) substantial works were carried out, before the expiration of the appropriate period, as extended or further extended, and
(vi) is satisfied that in the case of a permission—
(I) where the expiry of the appropriate period as extended or further extended occurred or occurs during the period beginning on 8 January 2021 and ending on the day before the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation, the application is duly made within 6 months of the date on which the said section 7 comes into operation, or
(II) where the appropriate period, as extended or further extended, expires on or after the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation, the application is duly made within the period prescribed for the purposes of section 43(2).”,
(b) as if in subsection (2)—
(i) during the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “subsection (1), (1A) or (1B)” for “subsection (1) or (1A)”, and
(ii) during the period beginning on the date that is the day after the date on which the amendments to section 42 effected by section 28(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “subsection (1) or (1B)” for “subsection (1)”, and
(c) as if in subsection (4)—
(i) during the period beginning on the date on which section 7 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “Except where subsection (1A) or (1B) applies, a decision” for “Except where subsection (1A) applies, a decision”, and
(ii) during the period beginning on the date that is the day after the date on which the amendments to section 42 effected by section 28 (2) of the Planning and Development (Housing) and Residential Tenancies Act 2016 cease to have effect, there were substituted “Except where subsection (1B) applies, a decision” for “A decision”.]
Annotations:
Amendments:
F450
Inserted (9.09.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 7, S.I. No. 458 of 2021.
Regulations regarding sections 40, 41 and 42.
43.—(1) The Minister may make regulations providing for any matter of procedure in relation to applications under section 42 and making such incidental, consequential or supplementary provision as may appear to him or her to be necessary or proper to give full effect to any of the provisions of section 40, 41 or 42.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) specify the time at which applications under section 42 may be made, the manner in which those applications shall be made and the particulars they shall contain,
(b) require applicants to furnish to the planning authority any specified information with respect to their applications (including any information regarding any estate or interest in or right over land),
(c) require applicants to submit to a planning authority any further information relevant to their applications (including any information as to any such estate, interest or right),
(d) require the production of any evidence to verify any particulars or information given by any applicant, and
(e) require the notification (in a prescribed manner) by planning authorities of decisions on applications.
Annotations
Editorial Notes:
E198
Power pursuant to section exercised (9.09.2021 to 31.12.2021) by Planning and Development (Amendment) (No. 3) Regulations 2021 (S.I. No. 459 of 2021), in effect as per reg. 2(1), (2).
E199
Power pursuant to section exercised (9.08.2017) by Planning and Development (Amendment) Regulations 2017 (S.I. No. 342 of 2017), in effect as per reg. 2(1).
E200
Power pursuant to section exercised (19.08.2010) by Planning and Development Regulations 2010 (S.I. No. 406 of 2010).
E201
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Revocation or modification of permission.
44.—(1) If the planning authority considers that it is expedient that any permission to develop land granted under F451[this Part or Part XXI] should be revoked or modified, it may serve a notice in accordance with subsection (3) on the applicant and on any other person who, in its opinion, will be materially affected by the revocation or modification.
(2) A planning authority shall neither revoke nor modify a permission under this section unless the development to which the permission relates no longer conforms with the provisions of the development plan.
(3) The notice referred to in subsection (1) shall—
(a) refer to the permission concerned,
(b) specify the provisions of the development plan to which the permission no longer conforms, and
(c) invite the person or persons served with the notice to make written submissions or observations to the planning authority within the period specified in the notice (being not less than 4 weeks from the service of the notice) concerning the proposed revocation or modification.
(4) A planning authority may decide to revoke or modify a permission and, when making its decision, shall have regard to any submissions or observations made under subsection (3) (c).
(5) Where a planning authority decides to revoke or modify a permission under subsection (4), it shall specify in the decision the provisions of the development plan to which the permission no longer conforms, and the main reasons and considerations on which the decision is based.
(6) A person served with a notice under subsection (1) may, at any time within 4 weeks of the date of the decision, appeal to the Board against the decision.
(7) Where an appeal is brought under this section against a decision, the Board may confirm the decision with or without modifications, or annul the decision, and it shall specify the main reasons and considerations for its decision.
(8) The power conferred by this section to revoke or modify permission to develop land may be exercised—
(a) where the permission relates to the carrying out of works, at any time before those works have been commenced or, in the case of works which have been commenced and which, consequent on the making of a variation in the development plan, will contravene the plan, at any time before those works have been completed,
(b) where the permission relates to a change of the use of any land, at any time before the change has taken place,
but the revocation or modification of permission for the carrying out of works shall not affect so much of the works as have been previously carried out.
(9) A planning authority may at any time, for stated reasons, by notice in writing withdraw a notice served under this section.
(10) Particulars of a decision made under this section shall be entered in the register.
(11) The revocation or modification under this section of a permission shall be a reserved function.
Annotations
Amendments:
F451
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 16, S.I. No. 488 of 2022.
Editorial Notes:
E202
The revocation or modification of a permission to develop land if the development to which the permission relates no longer conforms with the provisions of the development plan 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 70 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.
F452[
Revocation or modification of planning permission for certain reasons
44A. (1) The Minister may, upon the request of the Minister for Justice and Equality, the Minister for Foreign Affairs and Trade or the Minister for Defence and with the approval of the Government, make an order revoking or modifying a grant of permission under this Act if he or she is satisfied that—
(a) the carrying out of the development to which the grant of permission relates is likely to be harmful to—
(i) the security or defence of the State, or
(ii) the State’s relations with other states,
and
(b) the revocation or modification concerned is necessary in the public interest.
(2) The Minister may, before making an order under this section, consult with—
(a) the planning authority that granted the permission concerned,
(b) the person to whom the permission was granted, or
(c) any other person who, in the opinion of the Minister, is likely to be materially affected by the making of such order,
but shall not so consult if he or she considers that to do so would be harmful to the security or defence of the State or to the State’s relations with other states.
(3) This section shall apply to permissions whether granted before, on or after the passing of the Planning and Development (Amendment) Act 2018.
(4) Where an order is made under this section, the planning authority that granted the permission to which the order relates shall, within such period as may be specified in the order, serve—
(a) a notice in writing on—
(i) the person to whom the permission concerned was granted, and
(ii) any other person specified in the order,
informing him or her of the revocation or modification effected by the order, and
(b) a notice in writing—
(i) in the case of development commenced but not completed, on any person carrying out the development in respect of which the permission was granted, or on whose behalf such development is being carried out, requiring him or her to cease the development and restore the land, on which the development concerned is being carried out, to the condition it was in before the development commenced, or
(ii) in the case of development completed, on any person who carried out the development, or on whose behalf the development was carried out, requiring him or her to restore the land, on which the development concerned was carried out, to the condition it was in before the development was commenced.
(5) A person on whom a notice is served under paragraph (b) of subsection (4) shall comply with the notice.
(6) (a) The Minister shall, as soon as practicable after the making of an order under this section, give a copy of the order to the planning authority that granted the permission to which the order relates.
(b) A planning authority shall, as soon as practicable after the copy of an order has been given to it in accordance with paragraph (a), give a copy of the order to—
(i) the person to whom the permission to which the order applies was granted, and
(ii) any other person the Minister may direct.
(7) A permission to which an order under this section applies shall, upon the making of the order, stand revoked or modified, as may be appropriate, in accordance with the order.
(8) Any development carried out in contravention of an order under this section shall be an unauthorised development.
(9) Where the Minister makes an order revoking an order under this section—
(a) the second-mentioned order shall, for all purposes, be deemed never to have been made, and the register shall be amended accordingly, and
(b) the period between the making of the second-mentioned order and the first-mentioned order shall not be reckonable for the purpose of calculating the period since the granting of the permission.
(10) The Minister shall not, in relation to a permission, make an order under this section if the period since the grant of the permission exceeds 5 years.
(11) The making of an order under this section shall be recorded in the register as soon as may be after it is made.
(12) (a) Any proceedings before a court relating to an order under this section shall be heard in camera.
(b) A court before which proceedings relating to an order under this section are heard shall take all reasonable precautions to prevent the disclosure—
(i) to the public, or
(ii) where the court considers it appropriate, to any party to the proceedings,
of any evidence given or document submitted for the purposes of the proceedings, the disclosure of which, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.
(c) Without prejudice to the generality of paragraph (b), precautions referred to in that paragraph may include—
(i) the prohibition of the disclosure of such evidence or documentation as the Court may determine, and
(ii) the hearing, in the absence of any person or persons including any party to the proceedings, of any evidence or the examination of any witness or document that, in the opinion of the Court, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.]
Annotations
Amendments:
F452
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 27, S.I. No. 436 of 2018.
Editorial Notes:
E203
The section heading is taken from the amending section in the absence of one included in the amendment.
Acquisition of land for open spaces.
45.—(1) Where—
(a) development is being or has been carried out pursuant to a permission under section 34,
(b) (i) a condition requiring the provision or maintenance of land as open space, being open space to which this section applies, was attached to the permission, or
(ii) it was either explicit or implicit in the application for the permission that land would be provided or maintained as such open space,
(c) the planning authority has served on the owner of the land a written request that, within a period specified in the request (being a period of not less than 8 weeks commencing on the date of the request), he or she will provide, level, plant or otherwise adapt or maintain the land in a manner so specified, being a manner which in its opinion would make it suitable for the purpose for which the open space was to be provided, and
(d) the owner fails to comply or to secure compliance with the request within the period so specified,
the planning authority may, if it thinks fit, publish in a newspaper circulating in the district a notice (an “acquisition notice”) of its intention to acquire the land by order under this section and the acquisition notice shall specify a period (being a period of not less than 4 weeks commencing on the date on which the notice is published) within which an appeal may be made under this section.
(2) Where a planning authority publishes an acquisition notice, it shall serve a copy of the notice on the owner of the land to which the notice relates not later than 10 days after the date of the publication.
(3) Any person having an interest in the land to which an acquisition notice relates may within the period specified in the notice appeal to the Board.
(4) Where an appeal is brought under this section the Board may—
(a) annul the acquisition notice to which the appeal relates, or
(b) confirm the acquisition notice, with or without modification, in respect of all or such part of the relevant land as the Board considers reasonable.
(5) If a planning authority publishes an acquisition notice and either—
(a) the period for appealing against the notice has expired and no appeal has been taken, or
(b) an appeal has been taken against the notice and the appeal has been withdrawn or the notice has been confirmed whether unconditionally or subject to modifications,
the planning authority may make an order in the prescribed form which order shall be expressed and shall operate to vest the land to which the acquisition notice, or, where appropriate, the acquisition notice as confirmed, relates in the planning authority on a specified date for all the estate, term or interest for which immediately before the date of the order the land was held by the owner together with all rights and liabilities which, immediately before that date, were enjoyed or incurred in connection therewith by the owner together with an obligation to comply with the request made under subsection (1)(c).
(6) Where a planning authority has acquired by an order under this section land which is subject, either alone or in conjunction with other land, to a purchase annuity, payment in lieu of rent, or other annual sum (not being merely a rent under a contract of tenancy) payable to the Minister for Agriculture. Food and Rural Development or to the Commissioners, the authority shall become and be liable, as from the date on which the land is vested in them by the vesting order, for the payment to that Minister or to the Commissioners, as the case may be, of the annual sum or such portion thereof as shall be apportioned by that Minister or by the Commissioners, on the land as if the land had been transferred to the authority by the owner thereof on that date.
(7) When a planning authority makes an order under this section in relation to any land, it shall send the order to the registering authority under the Registration of Title Act, 1964, and thereupon the registering authority shall cause the planning authority to be registered as owner of the land in accordance with the order.
(8) Where a claim is made for compensation in respect of land to which an order under this section relates, the claim shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, in the like manner in all respects as if such claim arose in relation to the compulsory acquisition of land, but subject to the proviso that the arbitrator shall have jurisdiction to make a nil award and to the following provisions:
(a) the arbitrator shall make a nil award, unless it is shown by or on behalf of the owner that an amount equal to the value of the land to which the relevant permission under section 34 relates, being that value at the time when the application for the permission was made, as a result of the development has not been recovered and as a further such result will not in the future be recoverable by disposing of the land which is land to which the permission relates and which is not land to which the order relates, and
(b) in the assessment of the value of the land to which the order relates, no regard shall be had to its value for use other than as open space and a deduction shall be made in respect of the cost of carrying out such works as may be necessary to comply with the request made pursuant to subsection (1)(c).
(9) A planning authority shall enter in the register—
(a) particulars of any acquisition notice published by it,
(b) the date and effect of any decision on appeal in relation to any such notice, and
(c) particulars of any order made under this section,
and every entry shall be made within the period of 7 days commencing on the day of publication, receipt of notification of the decision or the making of the order, as may be appropriate.
(10) This section applies to any form of open space (whether referred to as open space or by any other description in the relevant application for a permission or in a condition attached to the relevant permission), being land which is not described in the application or condition either as private open space or in terms indicating that it is not intended that members of the public are to have resort thereto without restriction.
Annotations
Editorial Notes:
E204
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Requiring removal or alteration of structure or discontinuance of use.
46.—(1) If a planning authority decides that, in exceptional circumstances—
(a) any structure should be demolished, removed, altered or replaced,
(b) any use should be discontinued, or
(c) any conditions should be imposed on the continuance of a use,
the planning authority may serve a notice on the owner and on the occupier of the structure or land concerned and on any other person who, in its opinion, will be affected by the notice.
(2) Subsection (1) shall not apply to any unauthorised development unless the notice under this section is served after seven years from the commencement of the unauthorised development.
(3) A notice referred to in subsection (1) shall—
(a) specify the location of the structure or land concerned,
(b) specify the steps that will be required to be taken within a specified period, including, where appropriate—
(i) the demolition, removal, alteration or replacement of any structure, or
(ii) the discontinuance of any use or the continuance of any use subject to conditions,
and
(c) invite any person served with the notice to make written submissions or observations to the planning authority in respect of the matters referred to in the notice within a specified period (being not less than 4 weeks from the date of service of the notice).
(4) A planning authority may, having regard to any submissions or observations made in accordance with subsection (3) (c), decide to confirm the notice, with or without modifications, or not to confirm the notice.
(5) A planning authority, in deciding whether to confirm a notice pursuant to this section, shall consider—
(a) the proper planning and sustainable development of the area,
(b) the provisions of the development plan,
(c) the provisions of any special amenity area order, any European site or other area designated for the purposes of section 10(2) (c) relating to the area, and
(d) any other relevant provision of this Act and any regulations made thereunder.
(6) Where a notice is confirmed by a planning authority under subsection (4), any person served with the notice may, within 8 weeks of the date of service of the notice, appeal to the Board against the notice.
(7) Where an appeal is brought under this section against a notice, the Board may confirm the notice with or without modifications or annul the notice, and the provisions of subsection (5) shall apply, subject to any necessary modifications, to the deciding of an appeal under this subsection by the Board, as they apply to the making of a decision by the planning authority.
(8) A notice under this section (other than a notice which is annulled) shall take effect—
(a) in case no appeal against it is taken, on the expiration of the period for taking an appeal, or
(b) in case an appeal or appeals are taken against it and not withdrawn, when the appeal or appeals have been either withdrawn or decided.
(9) If, within the period specified in a notice under this section, or within such extended period as the planning authority may allow, any demolition, removal, alteration or replacement required by the notice has not been effected, the planning authority may enter the structure and may effect such demolition, removal, alteration or replacement as is specified in the notice.
(10) Where a notice under this section is complied with, the planning authority shall pay to the person complying with the notice the expenses reasonably incurred by the person in carrying out the demolition, removal, alteration or replacement specified in the notice, less the value of any salvageable materials.
(11) Where any person served with a notice under this section fails to comply with the requirements of the notice, or causes or permits the failure to comply with the requirements, he or she shall be guilty of an offence.
(12) Particulars of a notice served or confirmed under this section shall be entered in the register.
(13) (a) A planning authority may, for stated reasons, by notice in writing withdraw a notice served under this section.
(b) Where a notice is withdrawn pursuant to this subsection by a planning authority, the fact that the notice was withdrawn shall be recorded by the authority in the register.
Agreements regulating development or use of land.
47.—(1) A planning authority may enter into an agreement with any person interested in land in their area, for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be specified by the agreement, and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the planning authority to be necessary or expedient for the purposes of the agreement.
(2) A planning authority in entering into an agreement under this section may join with any body which is a prescribed authority for the purposes of section 11.
(3) An agreement made under this section with any person interested in land may be enforced by the planning authority, or any body joined with it, against persons deriving title under that person in respect of that land as if the planning authority or body, as may be appropriate, were possessed of adjacent land, and as if the agreement had been expressed to be made for the benefit of that land.
(4) Nothing in this section, or in any agreement made thereunder, shall be construed as restricting the exercise, in relation to land which is the subject of any such agreement, of any powers exercisable by the Minister, the Board or the planning authority under this Act, so long as those powers are not exercised so as to contravene materially the provisions of the development plan, or as requiring the exercise of any such powers so as to contravene materially those provisions.
(5) Particulars of an agreement made under this section shall be entered in the register.
Development contributions.
48.—(1) A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities).
(2) (a) Subject to paragraph (c), the basis for the determination of a contribution under subsection (1) shall be set out in a development contribution scheme made under this section, and a planning authority may make one or more schemes in respect of different parts of its functional area.
(b) A scheme may make provision for payment of different contributions in respect of different classes or descriptions of development.
(c) A planning authority may, in addition to the terms of a scheme, require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.
(3) (a) A scheme shall state the basis for determining the contributions to be paid in respect of public infrastructure and facilities, in accordance with the terms of the scheme.
(b) In stating the basis for determining the contributions in accordance with paragraph (a), the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities, except that any benefit which accrues in respect of existing development may not be included in any such determination.
(c) A scheme may allow for the payment of a reduced contribution or no contribution in certain circumstances, in accordance with the provisions of the scheme.
F453[(3A) Where a permission which includes conditions referred to in subsection (1) has been granted under section 34 in respect of a development and the basis for the determination of the contribution under subsection (1) has changed—
(a) where the development is one to which Part II of the Building Control Regulations 1997 (S.I. No. 496 of 1997) applies and a commencement notice within the meaning of that Part in respect of the development has not been lodged, or
F454[(b) where the development comprises houses and one or more of those houses has not been rented, leased, occupied or sold,]
the planning authority shall apply that change to the conditions of the permission where to do so would reduce the amount of the contribution payable.
F454[(3B) Where a development referred to in subsection (3A) comprises houses one or more of which has not been rented, leased, occupied or sold the planning authority shall apply the change in the basis for the determination of the contribution referred to in that subsection only in respect of any house or houses that have not been rented, leased, occupied or sold.]
(3C) Where the planning authority applies a change in the basis for the determination of a development contribution under subsection (3A) it may amend a condition referred to in subsection (1) in order to reflect the change.]
(4) Where a planning authority proposes to make a scheme under this section, it shall publish in one or more newspapers circulating in the area to which the scheme relates, a notice—
(a) stating that a draft scheme has been prepared,
(b) giving details of the proposed contributions under the draft scheme,
(c) indicating the times at which, the period (which shall be not less than 6 weeks) during which, and the place where, a copy of the draft scheme may be inspected, and
(d) stating that submissions or observations may be made in writing to the planning authority in relation to the draft scheme, before the end of the period for inspection.
(5) (a) In addition to the requirements of subsection (4), a planning authority shall send a copy of the draft scheme to the Minister.
(b) The Minister may make recommendations to the planning authority regarding the terms of the draft scheme, within 6 weeks of being sent the scheme.
(6) (a) Not later than 4 weeks after the expiration of the period for making submissions or observations under subsection (4), the F455[chief executive] of a planning authority shall prepare a report on any submissions or observations received under that subsection, and submit the report to the members of the authority for their consideration.
(b) A report under paragraph (a) shall—
(i) list the persons or bodies who made submissions or observations under this section,
(ii) summarise the issues raised by the persons or bodies in the submissions or observations, and
(iii) give the response of the F455[chief executive] to the issues raised, taking account of the proper planning and sustainable development of the area.
(7) The members of the planning authority shall consider the draft scheme and the report of the F455[chief executive] under subsection (6), and shall have regard to any recommendations made by the Minister under subsection (5).
(8) (a) Following the consideration of the F455[chief executive’s report], and having had regard to any recommendations made by the Minister, the planning authority shall make the scheme, unless it decides, by resolution, to vary or modify the scheme, otherwise than as recommended in the F455[chief executive’s report], or otherwise decides not to make the scheme.
(b) A resolution under paragraph (a) must be passed not later than 6 weeks after receipt of the F455[chief executive’s report].
(9) (a) Where a planning authority makes a scheme in accordance with subsection (8), the authority shall publish notice of the making, or approving, of the scheme, as the case may be, in at least one newspaper circulating in its area.
(b) A notice under paragraph (a) shall—
(i) give the date of the decision of the planning authority in respect of the draft scheme,
(ii) state the nature of the decision, and
(iii) contain such other information as may be prescribed.
(10) (a) Subject to paragraph (b), no appeal shall lie to the Board in relation to a condition requiring a contribution to be paid in accordance with a scheme made under this section.
(b) An appeal may be brought to the Board where an applicant for permission under section 34 considers that the terms of the scheme have not been properly applied in respect of any condition laid down by the planning authority.
(c) Notwithstanding section 34(11), where an appeal is brought in accordance with paragraph (b), and no other appeal of the decision of a planning authority is brought by any other person under section 37, the authority shall make the grant of permission as soon as may be after the expiration of the period for the taking of an appeal. provided that the person who takes the appeal in accordance with paragraph (b) furnishes to the planning authority security for payment of the full amount of the contribution as specified in the condition.
(11) Where an appeal is brought to the Board in respect of a refusal to grant permission under this Part, and where the Board decides to grant permission, it shall, where appropriate, apply as a condition to the permission the provisions of the contribution scheme for the time being in force in the area of the proposed development.
(12) Where payment of a special contribution is required in accordance with subsection (2) (c), the following provisions shall apply—
(a) the condition shall specify the particular works carried out, or proposed to be carried out, by any local authority to which the contribution relates,
(b) where the works in question—
F456[(i) are not commenced within 5 years of the date of payment to the authority of the contribution (or final instalment thereof, if paid by phased payment under subsection (15)(a)),
(ii) have commenced, but have not been completed within 7 years of the date of payment to the authority of the contribution (or final instalment thereof, if paid by phased payment under subsection (15)(a)), or]
(iii) where the local authority decides not to proceed with the proposed works or part thereof.
the contribution shall, subject to paragraph (c), be refunded to the applicant together with any interest that may have accrued over the period while held by the local authority,
(c) where under subparagraph (ii) or (iii) of paragraph (b), any local authority has incurred expenditure within the required period in respect of a proportion of the works proposed to be carried out, any refund shall be in proportion to those proposed works which have not been carried out.
(13) (a) Notwithstanding sections 37 and 139, where an appeal received by the Board after the commencement of this section relates solely to a condition dealing with a special contribution, and no appeal is brought by any other person under section 37 of the decision of the planning authority under that section, the Board shall not determine the relevant application as if it had been made to it in the first instance, but shall determine only the matters under appeal.
(b) Notwithstanding section 34(11), where an appeal referred to in paragraph (a) is received by the Board, and no appeal is brought by any other person under section 37, the authority shall make the grant of permission as soon as may be after the expiration of the period for the taking of an appeal, provided that the person who takes the appeal furnishes to the planning authority, pending the decision of the Board, security for payment of the full amount of the special contribution as specified in the condition referred to in paragraph (a).
(14) (a) Money accruing to a local authority under this section shall be accounted for in a separate account, and shall only be applied as capital for public infrastructure and facilities.
(b) A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of monies paid or owing to it under this section and shall indicate how such monies paid to it have been expended by any local authority.
(15) (a) A planning authority may facilitate the phased payment of contributions under this section, and may require the giving of security to ensure payment of contributions.
(b) Where a contribution is not paid in accordance with the terms of the condition laid down by the planning authority, any outstanding amounts due to the planning authority shall be paid together with interest that may have accrued over the period while withheld by the person required to pay the contribution.
(c) A planning authority may recover, as a simple contract debt in a court of competent jurisdiction, any contribution or interest due to the planning authority under this section.
(16) (a) A planning authority shall make a scheme or schemes under this section within 2 years of the commencement of this section.
(b) Notwithstanding the repeal of any enactment by this Act, the provisions of section 26 of the Act of 1963, in relation to requiring contributions in respect of expenditure by local authorities on works which facilitate development, shall continue to apply pending the making of a scheme under this section, but shall not apply after two years from the commencement of this section.
(17) In this section—
“public infrastructure and facilities” means—
(a) the acquisition of land,
(b) the provision of open spaces, recreational and community facilities and amenities and landscaping works,
F454[(c) the provision of roads, car parks, car parking places, surface water sewers and flood relief work, and ancillary infrastructure,]
(d) the provision of bus corridors and lanes, bus interchange facilities (including car parks for those facilities), infrastructure to facilitate public transport, cycle and pedestrian facilities, and traffic calming measures,
F456[F454[(e) the refurbishment, upgrading, enlargement or replacement of roads, car parks, car parking places, surface water sewers, flood relief work and ancillary infrastructure,]
(f) the provision of high-capacity telecommunications infrastructure, such as broadband,
(g) the provision of school sites, and
(h) any matters ancillary to paragraphs (a) to (g).]
“scheme” means a development contribution scheme made under this section;
“special contribution” means a special contribution referred to in subsection (2)(c).
Annotations
Amendments:
F453
Inserted (1.09.2015) by Urban Regeneration and Housing Act 2015 (33/2015), s. 29, S.I. No. 364 of 2015.
F454
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 28(1), (2)(a), (b), S.I. No. 436 of 2018.
F455
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. nos. 52-54, S.I. No. 436 of 2018.
F456
Substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 30, S.I. No. 477 of 2010.
Modifications (not altering text):
C85
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.
…
Editorial Notes:
E205
Making a development contribution scheme 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 71 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.
E206
Previous affecting provision: subs. (17)(c) amended (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 30, S.I. No. 477 of 2010; substituted as per F-note above.
Supplementary development contribution schemes.
49.—F457[(1) A planning authority may, when granting a permission under section 34, include conditions requiring the payment of a contribution in respect of any public infrastructure service or project—
(a) specified in a scheme made by the planning authority (in this section referred to as a “supplementary development contribution scheme”),
(b) provided or carried out or proposed to be provided or carried out—
(i) by a planning authority,
(ii) where the provision of the infrastructure concerned is an objective in the development plan of a planning authority, or of a planning scheme of the Dublin Docklands Development Authority under section 25 of the Dublin Docklands Development Act 1997, by a public authority, or, pursuant to an agreement entered into by a public authority with any other person, by that person, or
(iii) pursuant to an agreement entered into by a local authority with any other person, by that person,
and
(c) that will benefit the development to which the permission relates when carried out.
(1A) 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. ]
(2) (a) The amount, and manner of payment, of a contribution under subsection (1) shall be determined in accordance with a supplementary development contribution scheme.
(b) A supplementary development contribution scheme shall specify—
(i) the area or areas within the functional area of the planning authority, and
(ii) the public infrastructure project or service,
to which it relates, and more than one such scheme may be made in respect of a particular area.
(c) A supplementary development contribution scheme may make provision for the payment of different contributions in respect of different classes or descriptions of development.
(3) Subsections (3), (4), (5), (6), (7), (8), (9), (10), (11) and (15) of section 48 shall apply to a scheme subject to—
(a) the modification that references in those subsections to a scheme shall be construed as references to a supplementary development contribution scheme,
(b) any other necessary modifications, and
(c) the provisions of this section.
F458[(3A) Notwithstanding subsection (3) and section 48(10), the Board shall consider an appeal brought to it by an applicant for permission under section 34, in relation to a condition requiring the payment of a contribution in respect of a public infrastructure service or project specified in a supplementary development contribution scheme, where the applicant considers that the service or project will not benefit the development to which the permission relates and section 48(13) shall apply to such an appeal.]
F459[(3AA) Subsections (3A), (3B) and (3C) of section 48 shall apply where the basis for the determination of a contribution under subsection (1) has changed subject to—
(a) the modification that references in those subsections to a contribution shall be construed as references to a contribution to a supplementary development contribution scheme,
(b) any other necessary modifications, and
(c) the provisions of this section.]
(4) (a) A planning authority may enter into an agreement with any person in relation to the carrying out, or the provision, as may be appropriate, of a public infrastructure project or service.
(b) Without prejudice to the generality of paragraph (a), an agreement may make provision for—
(i) the manner in which the service or project is to be provided or carried out, as the case may be, including provision relating to construction or maintenance of any infrastructure or operation of any service or facility,
(ii) arrangements regarding the financing of the project or service and the manner in which contributions paid or owed to a planning authority pursuant to a condition under subsection (1) may be applied in respect of that project or service,
(iii) the entry into such further agreements as may be necessary with any other person regarding the financing and provision of such service or carrying out of such project,
(iv) the entry into force, duration and monitoring of the agreement (including the resolution of disputes).
(5) A planning authority shall not, pursuant to a condition under subsection (1), require the payment of a contribution in respect of a public infrastructure project or service where the person concerned has made a contribution under section 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constituted a part.
(6) A planning authority may, at any time, by resolution, amend a supplementary development contribution scheme for the purpose of modifying the manner of determining a contribution pursuant to a condition under subsection (1) where the cost of carrying out or providing, as the case may be, the public infrastructure project or service is less than the cost that was estimated when the planning authority first determined the amount of the contribution.
(7) In this section, “public infrastructure project or service” means—
(a) the provision of particular rail, light rail or other public transport infrastructure, including car parks and other ancillary development,
(b) the provision of particular new roads,
F460[(c) the provision of new surface water sewers and ancillary infrastructure,]
F457[(d) the provision of new schools and ancillary infrastructure. ]
Annotations
Amendments:
F457
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(a) and (c), S.I. No. 477 of 2010.
F458
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(b), S.I. No. 477 of 2010.
F459
Inserted (1.09.2015) by Urban Regeneration and Housing Act 2015 (33/2015), s. 30, S.I. No. 364 of 2015.
F460
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 28(3), S.I. No. 436 of 2018.
Modifications (not altering text):
C86
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.
…
C87
Dublin Docklands Authority construed (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 7(2), commenced on enactment, S.I. No. 114 of 2016. The Council referred to is Dublin City Council (see s. 2).
Transfer of functions
7. (1) All functions that, immediately before the dissolution day, were vested in the Authority under subsections (1) (with the exception of functions vested under subparagraphs (i), (ii) and (iii) of paragraph (b)), (2), (3), (5) and (6) of section 18 of the Act of 1997 shall on that day stand transferred to the Council.
(2) References in any enactment (other than this Act) or instrument under an enactment to the Authority shall, to the extent that such references relate to a function transferred to the Council under this section, on and after the dissolution day, be construed as references to the Council.
Editorial Notes:
E207
Making or amending a supplementary development contribution scheme 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 72 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.
E208
Previous affecting provision: subs. (7)(c) substituted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 31(a) and (c), S.I. No. 477 of 2010; substituted as per F-note above.
E209
Previous affecting provision: subs. (7)(c) amended (24.12.2002) by Planning and DeveCalopment (Amendment) Act 2002 (32/2002), s. 11, commenced on enactment; substituted as per E-note above.
Cases
Keogh & Others v Galway Corporation
Material Contravention
Mark Keogh, Jim Foy, Jane Turnbull, Hannah Kiely, Eileen Storan, Grace Stephens and Ellen Manning acting as officers of the Lower Salthill Residents’ Association v Mayor, Aldermen and Burgesses of the County Borough of Galway
1995 No. 51 JR
High Court
3 March 1995
[1995] 2 I.L.R.M. 312
MORRIS J
delivered his judgment on 3 March 1995 saying: This matter comes before the court by way of an application for judicial review, by way of certiorari seeking an order that the decision of the respondents made on 9 January 1995 be delivered up for the purpose of being quashed on the grounds that the purported resolution is in breach of s. 21(A) of the Local Government (Planning and Development) Act 1963 as amended. The applicants also seek an injunction restraining the respondents from proceeding with the erection of a hard stand or halting site to accommodate travellers on lands known as ‘the Bishop’s Field’ in the County Borough of Galway.
The basis upon which the relief is sought is that there was a failure on the part of the respondents to publish in Iris Oifigiúil and in one newspaper circulating in the area, notice of proposed amendments to variations to the Galway County Borough Development Plan 1991.
The circumstances in which this complaint arises can be summarised as follows. The Galway County Borough Development Plan 1991 was made by the respondents on 20 May 1991 and at paragraph 3.9 it is provided as follows:
It is a specific objective of the corporation to provide halting sites for travellers at Tuam Road, Headford Road, Doughiska, and along the access road to Silver Strand.
A variation to the said development plan was contemplated by the respondents and accordingly they proceeded to send the prescribed documents to the prescribed authorities and to publish a draft of the appropriate notices in Iris Oifigiúil and in one newspaper circulating in the area and to take all the other steps provided for in s. 21 of the Act. No issue is taken by the applicants that the respondents complied with their obligations in this regard.
52 objections or representations were received by the respondents to the proposed variations and 47 requests for an oral hearing were made. The hearing of the oral submissions was held on 21 and 22 September 1994.
The variation to the development plan which was then contemplated by the respondents was the deletion of paragraph 3.9 and replacing it with the following:
It is an objective of Galway Corporation to provide accommodation for travellers to include halting sites and group housing with such other facilities as may be required to facilitate the accommodation needs of travellers.
It was also proposed that in the zoning objectives for the ten zones, covered by the development plan, ‘use for accommodation for travellers as per paragraph *316 3.9, be added’. The general effect of this variation would be that there would be a fundamental change made to a part of the development plan. Whereas, originally only the four sites named would be used for providing halting sites for travellers, now under the proposed draft variations, all ten zones might be considered for such use.
The applicants in this case would not have been affected by the provision of halting sites at any of the four original named sites. However, under the proposed draft variation, the Salthill area would fall to be considered and in fact the gift of a field by the Bishop of Galway to the respondents for this express purpose rendered the construction of a halting site in that area likely.
It is a matter of record that work in this field commenced but was halted by order of the court dated 9 September 1994 on the grounds that ‘the Bishop’s Field’ was not one of the named sites in the original development plan.
The draft variation to the development plan was due for consideration by the respondents at its meeting to be held on 9 January 1995. However, four days prior to that meeting a report was received from the senior executive (planning) which was endorsed by the city engineer and this advised that since all sites would have to be laid out and designed to a high standard with proper facilities for drainage, electricity, car parking, amenity open space and refuse collection, that ‘… there should not be major difficulty in planning terms in selecting suitable sites within [seven zones]. I believe that the prospects of finding suitable locations for halting sites which meet with proper planning and development criteria within zones ‘CC’, ‘RA’ and ‘G’ are low’. That report was forwarded to the respondents prior to their meeting on 9 January 1995 and at that meeting the following resolution was proposed, seconded and adopted:
It is hereby resolved that the corporation of the County Borough of Galway being the planning authority for the County Borough of Galway, having published the draft variations and having taken into consideration the objections/representations received, the reports of the oral statements made and written submissions received, amend the draft variations as advertised by removing zoning objectives ‘CC’, ‘RA’ and ‘G’ from the list of zones where accommodation for travellers will be allowed, that we hereby approve and adopt the draft variations as amended, and hereby adopt as variations of the Galway County Borough Development Plan 1991 the document referred to in the city manager and towns clerk’s report of 4 January 1995 (draft variation (No. 1) to the Galway County Borough Development Plan 1991) and in accordance with the provisions of the Local Government (Planning and Development) Acts 1963/1993 hereby make variations to the Galway County Borough Development Plan 1991 in the terms of the aforementioned documentation and it is further resolved that the seal of the corporation be affixed to the said variations of the development plan and that the necessary notice of the making of the variations shall be published in accordance with the provisions of the said Acts *317 under the title ‘Variations (No. 1) to the Galway County Borough Development Plan 1991’.
The complaints which the applicants make, about the procedures which were adopted by the respondents in passing this resolution, can be summarised as follows.
S. 21(A) of the Act provides that where a planning authority have prepared proposed variations of a development plan and have complied with the requirements of s. 21 and where it appears to the authority that the draft should be amended, then they may make amendments to the draft. However, if these amendments would, if made, be a ‘material alteration’ to the draft then they must cause notices of the proposed amendments to be published in Iris Oifigiúil and in one newspaper circulating in the area and then take into account any representations that are made. It is the applicants’ case that the removal of the three zones from the original variation to the plan constituted a ‘material alteration’ of the draft and that this would bring about an obligation on the respondents to publish the proposed amendments as required by s. 21(A)(2). They submit that this failure to publish renders the variation to the development plan void.
The practical way in which it is submitted this has affected the applicants is put on the following basis:
(1) It is submitted that the removal of three zones as potentially available for halting sites will subject the halting sites that are built, or some or all of the remaining seven, to a higher degree of use and the applicants should have been permitted to make submissions on this topic.
(2) It is submitted that arguments can be formulated in favour of constructing halting sites in the three zones dropped by the amendment. The applicants should, it is submitted, have been permitted the opportunity of making submissions on this aspect of the case.
On behalf of the respondents the following submissions were made:
(1) It is submitted that comprehensive objections and submissions were made by and on behalf of the applicants both individually and as members of the Lower Salthill Residents’ Association and full consideration was given by the respondents to the submissions and the submissions included circulars sent to each councillor and the representations were made right up to the date of the meeting.
(2) It is submitted that the question of whether the removal of the three zones from the original variation was a ‘material alteration’ to the variation, was one made by the respondents and they decided that it was not a material alteration. It is submitted that in the circumstances on the authority of O’Keeffe v. An Bord Pleanála [1993] 1 IR 39; [1992] ILRM 237 that the court should not interfere with this decision as there were clearly grounds to support such a decision.
With regard to the first of the submissions made on behalf of the respondents, I have read and considered the representations and the submissions made by the *318 applicants and what is clear beyond doubt is that all of these submissions direct their attention towards the enlargement of the area under contemplation as sites for halting sites for travellers and all the objectors had in mind was the enlargement of the area from the four designated sites specified in the original paragraph 3.9 to the ten zones. All of the objections including the written objections dated 9 January 1995 have this enlargement of the area in contemplation. It is true that other points are raised including the fact that the power to decide on the location of these sites is removed from the elected members and handed over to the officials of the corporation. However, in none of these objections or representations is there any reference to the fact that certain specified areas are being excluded. In particular the zone designated ‘CC’ meaning ‘City Centre’ might well be a subject upon which a variety of submissions might be made if it was appreciated that it was to be excluded from these zones in contemplation for a halting site and it is clear to my mind that the reduction from 10 to 7 zones as opposed to the enlargement of the area from 4 specified areas to 10 zones was never addressed in any of the objections. In these circumstances I do not consider that this is a valid submission. It is true that objections and representations were made but not on this point.
With regard to the second point, one may take as a starting point that part of the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at p. 228 where he says:
When an executive discretion is entrusted by parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognises certain principles upon which the discretion must be exercised, but within the four corners of these principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law.
In State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642 at p. 657; [1987] ILRM 202 at p. 215, Henchy J in considering Lord Greene’s judgment set out his tests of unreasonableness and irrationality as a basis upon which a court could or should interfere with the decision of an administrative tribunal and he said:
I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does then the decision-maker should be held to have acted ultra vires for the necessary implied constitutional limitation of jurisdiction in all decision-making which affects the rights and duties requires inter alia that the decision-maker *319 must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.
With that statement Finlay CJ was in agreement both in Keegan’s case and in O’Keeffe v. An Bord Pleanála.
Accordingly the law is clear and the fundamental issue that I have to try on this point is, was there a decision made by the respondents that the amendment to the proposed variation was not a ‘material alteration’ of the draft.
In his affidavit Mr Gavin, the respondents’ city manager and town clerk, at paragraph 13 says ‘The amendment made to the draft variation (No. 1) of the Galway County Borough Development Plan 1991 by the corporation on 9 January 1995 was not, in my opinion and that of the corporation, a material alteration of the draft concerned and it was not necessary to publish the proposed amendment before making the variations’. Counsel for the applicants has objected to Mr Gavin deposing to what the opinion of the corporation was or might have been on that occasion. This objection, in my view, is not material and I do not find it necessary to rule upon it. I have searched the minutes of the quarterly meeting of the Galway City Council held on Monday, 9 January 1995 for any reference or discussion touching on the question of whether the removal of zoning objectives ‘CC’, ‘RA’ and ‘G’ from the list of the zones where halting sites for travellers will be allowed, and nowhere do I find anything to suggest that consideration was given to the question of whether this amendment would be ‘a material alteration’. It is clear from the minutes that the matter was dealt with by the city manager and town clerk by reading his report which broadly summarises the history of the project and referring to the report of 4 January 1995 from the senior executive (planning) endorsed by the city engineer and this is followed by his recommendation, recommending the removal of the three zones. There followed a discussion and the proposal of the operative resolution which was adopted. In my view it is clear that at the relevant time, whatever may have subsequently been the views held by either Mr Gavin or the council, that at no stage before it was adopted was consideration given to the question of whether this was a material alteration to the draft.
In these circumstances it is clear to me that at no relevant stage did the respondents decide or conclude that the amendment was not a material alteration.
In these circumstances I am of the view that it is open to the court to determine this issue de novo.
I am left in no doubt that this was a material alteration to the draft proposed variation. It is clear to my mind that the exclusion of three zones from the original contemplated ten zones is a significant alteration. The exclusion of Galway city is a matter upon which one could assume there would be conflicting points of view and upon which objection, submission and representation would arise.
*320
It follows that since the proposed amendment was a material alteration, the necessity to publish in Iris Oifigiúil and in one newspaper circulating in the area arises as provided in s. 21(A)(2) and the respondents’ failure to comply with this statutory duty invalidates the purported resolution.
Accordingly the applicant is entitled to the relief sought and I will make the order accordingly.
Representation
Jerry Beades Construction Ltd v Dublin Corporation
Fair Procedures
[2005] I.E.H.C. 406JUDGMENT of Mr. Justice William M. McKechnie delivered on 7th day of September, 2005.
1. Mr. Jerry Beades, who is the owner of the plaintiff company, has for more than 25 years, either personally or through a corporate entity, carried on the business of a building contractor and developer in the greater Dublin area. As he has exclusive control of that company, I have on occasions in this judgment, where the context permits, used his name and that of the plaintiff interchangeably. The first named Defendant is sued as the planning authority for its administrative area in Dublin with the second named Defendant being a party as the statutory body entrusted to hear and determine appeals, inter alia, from that planning authority. Ireland and the Attorney General have been joined to answer a challenge that a particular section of the then Local Government Planning and Development Act 1963 was unconstitutional. Though starting life as a judicial review application, this case, by direction of the court on the leave application, was converted into and thereafter continued by way of plenary proceedings.
2. The structure within the Planning Department of Dublin Corporation at the relevant time would appear to have been as follows. There was an Assistant City Manager with delegated power to make the ultimate decision on all planning applications. He was Mr. Derek Brady. There was a Dublin City Planner whose name was Mr. McCarron, who had a Deputy called Mr. Patrick McDonnell. Directly underneath Mr. McDonnell were three senior planners each of whom was assigned to a different section of the city. In this case at the relevant time the senior planner for the inner city, where the site in question was and is located, was Mr. Michael Gough. Junior to Mr. Gough were two senior executive planners one of whom was Mr. James Muldowney and more junior still were a number of executive planners and assistant planners. A Mr. Rory O’Byrne was a Planning Inspector. There was then a Principal Officer dealing with planning matters whose name was Mr. Joe Scully. There was also of course the Enforcement Section.
In addition, as part of its wider responsibility Dublin Corporation, which is now titled Dublin City Council had a number of teams or committees who in a variety of ways were involved in the planning and development of the city. One was the Development Coordinating Committee which met monthly and a second was the Development Advisory Team which usually held its meetings on a Tuesday. There were also other groups which met from time to time. Virtually all significant planning decisions and all matters of substance involving the proper planning and development of the city, were raised and discussed at one or other of these said meetings.
As senior planner for the inner city all planning applications for that area, once lodged, would find their way onto Mr. Gough’s desk. He would then have the power and responsibility to distribute them to his staff including his executive planners. Normally he himself did not deal with single applications but rather concentrated on the more substantial or technical ones. When dealing with a planning application it would be Mr. Gough’s usual practice to consider the documentation as submitted, to review any enforcement file in respect of the property in question or any planning file relative to an adjacent property to carry out a site inspection, to have discussions with the applicant or his agent if so requested, and thereafter, to make a written recommendation in respect of the application. That recommendation could contain a number of conditions whether he was disposed to grant or refuse the permission. It would then be sent to the “Decisions Unit” within the Planning Section. There it would be prepared for submission to the Assistant City Manager and would be accompanied by a “green form”, which in effect amounted to a draft manager’s order reflecting the recommendation contained in the report. The ultimate decision would then be made by the said Assistant City Manager.
3. In this case there are a variety of allegations made against Dublin City Council and its officials, in particular Mr. Muldowney and Mr. McDonnell. Broadly speaking it is claimed; firstly that by reason of bias and pre-judgement neither of these individuals should have been involved in the planning retention application made by Mr. Beades; secondly that they acted contrary to natural and constitutional justice in the manner in which they processed that application; thirdly that this unfair and discriminatory treatment heavily influenced the selective documentation which was sent to An Bord Pleanála, to whom Mr. Beades had appealed, and fourthly the Board, though completely innocent when making its decision, was nevertheless oblivious to the true circumstances.
All of this means, accordingly to the Plaintiff that both individually and/or collectively the decision making process adopted by the planning authority, and/or the decision of that body and/or the decision of An Bord Pleanála were all tainted with unlawfulness which in the circumstances of the case should attract from this court the relief sought.
In addition, at the commencement of these proceedings, the plaintiff company faced the not inconsiderable obstacle of the two month time limit imposed by s. 82 (3A) and (3B) of the 1963 Act as inserted by s. 19 (3) of the Local Government (Planning and Development) Act, 1992. As the judicial review papers were not lodged until 11 months after the decision of An Bord Pleanála and so evidently even longer after the decision of the planning authority, it was obvious that the defendants would raise this statutory time bar. Hence the constitutional challenge. However at the conclusion of the evidence it was noted that the High Court was about to deliver judgment on an identical point in the case of White v. Dublin Corporation [2004] 1 IR 545 and as a result, all of the parties requested this court to defer judgment, until that decision and any appeal therefrom, had been determined. In June 2004 the Supreme Court declared this time limit to be unconstitutional with the result that this statutory provision is not now relevant to this case. Accordingly whilst I have heard submissions from the parties on what consequences might follow from the White decision, I do not believe that the previously existing time bar has any further relevance and consequently in my view, this matter is no longer a live issue in the case.
4. At the junction of Dorset Street Lower and Hardwicke Place Dublin 1, there stands a licensed premises know as “Kavanaghs” or “The Temple”. Immediately adjacent towards the Hardwicke Place direction, there is a site known as No. 2 Hardwicke Place, which property is now the subject matter of this application. In 1992/1993 both properties were owned by Mr. Beades’ Mother-in-Law, though the public house was held in the name of her family company. Having carried out urgent and substantial works of repair, renovation and improvement to that premises, Mr. Beades was offered, in lieu of payment, site No. 2. This loose arrangement was sufficient to enable Mr. Beades to explore the development potential of the property. Accordingly, having engaged architects, a planning application was lodged with Dublin City Council on 6th May, 1993. Being aware of the adjacent Hardwicke Place flats, Mr. Beades always intended that the roof of any building on site No. 2 should be at least one floor level above the roof of the adjoining flats. This, so as to prevent access being gained, by way of the roof tops, and accordingly the developer saw this feature as a security measure. This view was reflected in the original drawings submitted to Dublin City Council.
5. In setting out the following, as a bald chronology of the formal dates and events surrounding this application, it is necessary to immediately indicate that these facts do not by themselves demonstrate the essence of the dispute between the parties. Further matters must be outlined and these appear later in this judgment.
· 6/5/1993: A planning application is lodged seeking “retention of existing archway and entrance door at ground floor and erection of two bedroom apartments at first second and third floors”, on the site in question. The reference to “retention” does not imply the existence of a previous planning application,
· 24/6/1993 & 30/6/1993: Revised plans are lodged including a significant alteration in roof space and style,
· 27/7/1993: Notification by Dublin City Council of its decision to grant permission subject to conditions,
· 15/9/1993: Actual grant of permission issued from the Council,
· 9/1993: Work started on the site,
· 12/93: During the course of construction certain alterations and variations were made to the building. It has always been agreed that the same are unauthorised and are not covered by the permission as granted,
· 13/5/1994: Planning retention application made by Mr. Beades. This covered an alteration in roof design, the construction of an additional apartment on the fourth floor facilitated by the raising of the roof, and other alterations to the elevation which include changes in the window style and in the security gate.
· 11/7/1994: Notification by the planning authority of its decision to refuse permission indicating four reasons therefor,
· 4/8/1994: Mr. Beades lodged an appeal to An Bord Pleanála,
· 11/8/1994: Letter from An Bord Pleanála to the planning authority requesting certain documents relevant to the appeal,
· 7/9/1994: The planning authority responded by way of submitting a report, unsigned but under the name of Mr. Muldowney as well as a covering letter which repeats the “additional comments” made by Mr. Muldowney in an attachment to this report (on the council’s internal documentation) both of which are dated 6th September, 1994.
· 30/11/1994: A report is made by Mr. Van Der Kamp who is a Senior Planning Inspector with An Bord Pleanála and
· 8/12/1994 An Bord Pleanála’s issues its decision to refuse permission for retention for the reasons set out in its said order.
6. In addition to the information above outlined, it is also necessary to consider the inter partes correspondence as well as internal events within the Planning Department as these unfolded throughout 1994 and 1995. Immediately prior to so doing however, I should mention the following matters which pre-date the first letter in the line of correspondence to which I am about to refer. On some unspecified date but within the statutory period permitted for determining the original application, Mr. James Muldowney who was dealing with the file, paid a site visit to No. 2 Hardwicke Place. There he spoke with Mr. Beades, who prior to that, had no regular contact with him. At most he was only a distant acquaintance through both families living nearby when growing up and also because Mr. Beades brother may have been, at some stage in the same class as Mr. Muldowney. In any event it became quite clear during the course of the resulting discussion, that the planner did not favour the application as made and in particular was adverse to the roof profile including its height, to any question of constructing an apartment on the fourth floor, to the ceiling height and to the window type and appearance. Whilst complaining about the planner’s tone and his constant linkage of the public house property with this site, Mr. Beades ultimately lodged revised plans in June of 1993 which reflected the views of Mr. Muldowney. It is claimed by the developer that he had no choice in this regard as in order to avail of certain tax incentives attaching to the site he was under time constraints to move the development forward. Notwithstanding the furnishing of these plans however Mr. Beades still foresaw a security problem given the proximity of the proposed building to the flats and also the ease of access from one roof to the other. Whatever may have been his reservations on these matters, I am, however, satisfied that the submission of the revised drawings can properly be described as the furnishing of “unsolicited information”. It was, of course on foot of these drawings that the original permission was notified in July 1993.
7. On 10th or 11th February, 1994 Mr. Muldowney had a phone conversation with Mr. Beades. During the course of that conversation it was made clear by the planner that he opposed the changes carried out in December 1993. These it will be recalled, involved the alterations which formed the subject matter of the later planning retention application. In defence of the position taken, Mr. Beades attempted to explain the reasons which prompted his decision. Essentially these were based on safety and security considerations. He voiced the concern that if constructed as originally designed, children could with ease move from one roof to another and indeed further onwards, and secondly, such children and others could also avail of this means of access, to break in or attempt to break in to a number of adjacent properties. The alterations, according to Mr. Beades, were not carried out with the intention of constructing a further apartment on the fourth floor, though incidentally the changes did facilitate this. Whether that be correct or not, it is alleged by Mr. Beades that the planner had no interest in this explanation and that he was most irate with him. Moreover and this is quite a significant point, it is claimed that on being informed of the developers intention to apply for a retention permission, Mr. Muldowney said “you do realise that in future your planning applications will be treated with the same contempt you have for me and the planning process”.
8. That conversation was followed by a letter dated 11th February, 1994 from Mr. Beades to Mr. Muldowney. Therein the developer alleged that when told of his intention to apply for retention, the planner responded by saying that “my planning application will be treated with contempt by the planning department in the future”. Notwithstanding the further complaint that the conversation was terminated by Mr. Muldowney hanging up the phone, a meeting was requested with him so as to discuss the current problem. No such meeting however ever took place.
On 14th February Mr. Muldowney by way of an internal memo recommended “that enforcement action be taken immediately so that the unauthorised portion of the roof be removed”.
9. On Friday 19th February Mr. Muldowney, without any prior notice, demanded access to the site from the manager of the adjoining public house. When he was informed of Mr. Beades absence, it is claimed that the planner’s response was to indicate the existence of legal means to gain access, as he deemed the manager’s response to constitute a technical refusal. On Monday 21st Mr. Beades sent a fax message informing Mr. Muldowney that he would be at the site on the following Wednesday if that would suit for inspection purposes. On that Wednesday Mr. Rory O’Byrne a Planning Inspector visited the site as did two people from the building control section of Dublin City Council. Whilst it is uncertain what precise role Mr. Muldowney played in this arrangement, it is clear from an internal memo dated the 6th December, 1995 that Mr. O’Byrne thought “it most unusual” that building control officers should have arrived contemporaneously with him to inspect the site. These events gave rise to another letter from Mr. Beades to Mr. Muldowney dated 23rd February, 1994 in which he states that “I regard these visits very seriously coupled with the threat issued on 11th February about any future applications of mine to the planning office”.
10. On 1st March Mr. Muldowney recommended that High Court proceedings be taken and that in order to expedite the matter an interim injunction should be applied for. Prior to that Mr. O’Byrne had also recommended High Court proceedings. On 4th March a letter was written to Mr. O’Brien informing him that an application to retain would be lodged in the coming weeks.
11. Having retained Mr. Brendan O’Mahony and Company Solicitors to act on his behalf, that firm wrote to the Planning Department on 11th March and requested a deferment of the enforcement proceedings in view of its client’s intention to apply for planning retention. On 21st April a Principal Officer, at the request of Mr. Muldowney, replied and informed the solicitor that proceedings would not be suspended. By this date a recommendation had been made to the Assistant City Manager (on 10th March) to commence High Court proceedings and Mr. Brady had made an order to that effect on 15th March. In fact for some extraordinary reason, never adequately explained, the s. 27 notice of motion did not issue until 8th September, 1995 and had its first return date on 16th October of that year.
Mr. Beades wrote a further letter, this time to the Principal Officer, Mr. Joe Scully, on 15th March, 1994. He complained of a “heavy handed approach” to the problems which he had encountered with the site and then said “I wrote to the planner concerned on 11th March and I have not received a reply or acknowledgement of that letter. It would appear from the actions of the planner in an unprecedented step of trying to get the other regulatory authorities to act against me. I feel that I am being victimised in view of what was said by Mr. James Muldowney in my last conversation with him. I request a meeting with yourself before I lodge my application as I am very concerned with the way I have been dealt with by the planner in this area”. To my knowledge no such meeting ever took place and no reply ever issued from Mr. Scully.
12. By letter dated 1st June, 1994 Mr. Beades wrote to Mr. Gough and referred to a letter dated 30th May in which the council’s law agent said that the s. 27 proceedings would continue. This it was claimed was contrary to what had been discussed and understood, if not agreed between Mr. Beades and Mr. Gough when they previously had met.
This meeting and the overall contact between Mr. Beades and Mr. Gough is dealt with later in this judgement.
As the planning retention application was lodged on 13th May, the inter partes correspondence virtually ends with the aforesaid letter.
13. Before I deal with the manner in which Mr. Beades believed that his planning retention application was being dealt with, and how in fact it was dealt with, as well as the involvement in the process of Mr. Muldowney and Mr. McDonnell, I should mention the following. Mr. Beades copied his letter of 11th February (see para 8 above) to a member of the Oireachtas who apparently then communicated with the Dublin City Planner. In turn Mr. McCarron wrote to Mr. McDonnell by way of internal memo on 22nd February and sought clarification of some of the matters raised in the letter of complaint, as well as directing that “the development proposed (be) considered further as a matter of urgency”. It would appear that Mr. McDonnell then took the matter up with Mr. Muldowney who denied, not only any discourtesy, but also any threat of treating Mr. Beades application with contempt. Apparently Mr. Muldowney himself made some contact with the public representative in question though the evidence in this regard is entirely hearsay and lacks precision. In any event Mr. Muldowney ultimately writes a letter dated 16th March, 1994 to Mr. Beades in which he denies the matters complained off in the letter dated 11th February, and furthermore claims that the “contempt allegation” is, to Mr. Beades acknowledge “wholly untrue”. In addition he says “I regard it as a slur on my personal character and professional standing within Dublin Corporation. … I am now seeking an unreserved retraction of the sentiments expressed in your letter”. Whilst sent by registered post I am satisfied that Mr. Beades never in fact received this handwritten letter and that no copy of it was attached to a further handwritten note sent by Mr. Muldowney on 25th March, 1994. This last mentioned letter was purely to inform Mr. Beades that the original letter could be collected at the post office but when he attended at Fairview Delivery Office he was told that the same had been returned to Mr. Muldowney. In essence Mr. Beades never received a single reply from Mr. Muldowney. In this context the letter sent to the Principal Officer, Mr. Scully, on 15th March, 1994 found its way to Mr. McCarron who made a handwritten notation thereon, on 21st March. He indicated that, although Mr. Muldowney had apparently taken legal advice on the complaint, he believed that a meeting with Mr. Beades would be desirable at which Mr. Muldowney, Mr. Gough/Mr. McDonnell would also attend. As Mr. Gough was on holidays during this period, this note was never received by him.
14. Against this background Mr. Beades was fearful that his planning retention application would not be dealt with fairly by Mr. Muldowney, a view contained in the aforesaid letter of 15th March to Mr. Scully. The developer spoke to Mr. Rory O’Byrne about these concerns. He was advised to contact Mr. Gough who was the senior planner for the area in question and was of course Mr. Muldowney’s immediate superior. He did so and met him on 11th May, 1994 some two days prior to lodging the application. During this meeting Mr. Beades outlined the planning history of the site, the security/vandalism problems encountered in December 1993, the acknowledged fact that the alterations required a further planning permission, the correspondence between himself and Mr. Muldowney, his belief that the respective families of the Beades and Muldowney may have known each other and also related other matters of concern vis-à-vis the impartiality of Mr. Muldowney. This information, together with what Mr. Rory O’Byrne had previously told Mr. Gough about the situation, led the latter to a belief that, as a customer of the corporation and as a client of the public, Mr. Beades was entitled to a guarantee of fairness in respect of his retention application. Accordingly, although the senior planner would not normally deal with a single site, Mr. Gough assured Mr. Beades that he personally would deal with the application and that enforcement proceedings would not proceed pending his determination thereof. As a result of this guarantee and these assurances, the furnishing of which were fully corroborated by Mr. Gough in evidence, the application to retain was submitted on 13th May, 1994.
15. Thereafter Mr. Gough dealt with the application in the normal manner. He looked at the enforcement file, reviewed the planning file with regard to the adjacent licensed premises, considered the application, carried out a site inspection and made a report dated 21st June, 1994 in which, subject to conditions he recommended that the application be granted. That report, if normally dealt with, would then be sent to the “decisions section” of the council which would process the same into an acceptable format so as to produce a draft manager’s order. The papers would normally then be sent to the Assistant City Manager for his ultimate decision. The entire process usually took three to five days.
16. On 5th July, at a meeting to deal with an entirely different site which was situated at Capel Street, Mr. Gough met Mr. Beades who enquired about the application. Mr. Gough was surprised as he had dealt with the matter more than two weeks previously. In returning to the office he went to a senior staff officer, a Mr. Sean Purcell who did not have the file readily available. He was requested to locate it as a matter of urgency. Having found the file the following meeting or discussion took place between Mr. Gough, Mr. Muldowney and Mr. McDonnell.
17. In the late afternoon of Friday 8th July, 1994 Mr. McDonnell went to Mr. Gough’s office and presented him with a copy of a report which Mr. Muldowney had drawn up in relation to the planning retention application. It is a fact that some days earlier, having found out that the application was in, Mr. Muldowney took the file from the “decisions section” and with the knowledge of Mr. McDonnell, though not of Mr. Gough, drafted his own report on the application. That recommended a refusal. At the meeting in question a discussion took place on the planning merits of the application. Mr. Gough was informed that he was being overruled by Mr. McDonnell who said that he was making the decision. Of course as Mr. Gough immediately pointed out he could not so do as that was a matter for the City Manager. After the meeting concluded Mr. McDonnell put his signature to the bottom of Mr. Muldowney’s report. That was the only report which went to the City Manager who made his decision on 11th July.
18. To finish this sequence of events Mr. Beades appealed to An Bord Pleanála on 4th August and the planning authority responded on 7th September to the Board request for documents which was dated 11th August. That response included Mr. Muldowney’s report which was redated 6th September, although the same was neither signed by him or countersigned by Mr. McDonnell. It also involved a covering letter which as previously indicated (see para. 5 above) repeated verbatim the contents of Mr. Muldowney’s “additional comments” also of the 6th September. Thereafter it is common case that the planning inspector did a report and recommended refusal, which refusal formed the subject matter of the Board’s decision of the 8th December, 1994.
19. There is one other piece of crucial evidence in this case. Referring back to the letter from Brendan O’Mahony and Company Solicitors dated 11th March, 1994 (see para 11 above), there is a handwritten note on some copies of that letter. It is dated 22nd March, 1994 and is signed by James Muldowney. It reads as follows:- “This matter has been considered at length and discussed with Mr. P. McDonnell D.D.P.O. The recommendation in relation to the extra apartment at roof level will be to refuse and similarly in relation to the top hung sash windows. James Muldowney 22.3.94”.
At no stage in the entire process did Mr. Gough, Mr. Brady, An Bord Pleanála’s planning inspector or the Board itself, become aware of this letter or indeed, apart from Mr. Gough, of the complaints made by Mr. Beades against Mr. Muldowney.
20. During the course of this case I heard oral evidence from Mr. Beades as well as Messrs. Gough, McDonnell, McCarron and Scully all of whom were called by the plaintiff company. The first named Defendant called Mr. Derek Brady. My views on the totality of the evidence including the oral evidence offered by these witnesses, can conveniently be dealt with immediately after I have outlined the submissions made by the respective parties.
21. Mr. James Dwyer S.C., on behalf of the plaintiff company, made the following submissions:-
(1) Having reviewed the facts in a chronological manner, he identified several features of the evidence which he relied upon in order to support his legal submissions;
(2) Every planning application he said must be heard and determined in a fair proper and unbiased way, with no distinction possible where the adjudication was on a retention application;
(3) Dublin City Council, at the relevant time, had no formal procedure for dealing with complaints made by members of the public, including those participating in the process, against planning officials. The informal procedure, such as it was in this case, was seriously flawed in that little or no action was taken, in order to accept by way of verification or reject by way of conclusion, the complaints made by Mr. Beades;
(4) These complaints, in accordance with the undisputed evidence, were unprecedented in the memory of many of the council’s officials and as such ought to have attracted from management a high degree of scrutiny;
(5) The merits of the ultimate planning decision were entirely irrelevant to this case as was the issue as to whether or not Mr. Gough’s views were more preferable to those who held a contrary opinion. It was not the conclusion but the process which was being impugned in this action.
(6) Mr. Gough’s report should have been transmitted to the Assistant City Manager so that he would have had available, at the time of his decision, the alternative opinion which existed within the planning department. Certainly it was not unusual for this to occur where such a difference of view existed.
(7) The notation dated 22nd March, 1994 and signed by Mr. Muldowney, clearly indicated a pre-judgment on his part and on the part of Mr. McDonnell with regard to any planning retention application which Mr. Beades might make.
(8) Neither the complaints made, or this note, or Mr. Gough’s contrary view, were ever transmitted to the Assistant City Manager.
(9) As s. 82 (3A) and (3B) of the Local Government (Planning and Development) Act 1963 was no longer relevant, the only time constraints which were now material to this case, were those contained in the rules of court which provided for a six month period. Though the within proceedings were not instituted within this time, there was good, sufficient and compelling reason for this court to enlarge that period and in the circumstances it should do so.
(10) Given the nature of the complaints and the other matters alleged against Mr. Muldowney and Mr. McDonnell, it was contrary to natural and constitutional justice for either of these individuals to have had any involvement with the planning retention application. Reliance in this regard was placed on In Re Haughey [1971] I.R. 217, Garvey v. Ireland [1981] I.R. 75 and McDonald v. Bord na gCon [1965] I.R. 217. Though the plaintiff company would be justified in asserting actual or subjective bias it did not have to do so. It therefore relied on the appearance of bias or on objective bias. McDonough v. Minister for Defence [1991] ILRM 115 at 120 was referred to where Lavan J. said “the commanding officer’s decision to delegate Captain Holmes to conduct the interview (was unreasonable) having regard to the applicant’s complaints against that officer”. It is claimed that this is particularly apt in the present case.
(11) “Bias” may be either conscious or unconscious and does not necessarily denote “a corrupt state of mind”. Features such as personal attitudes, relationships, and beliefs of the decision maker may give rise to objective bias even where it is conclusively established that such bias did not in fact exist and otherwise did not influence the relevant decision.
(12) Counsel heavily relied on the case of Dublin Well Woman Centre Ltd v. Ireland [1995] 1 ILRM 408 and in particular on the following passage from the judgment of Denham J. in the Supreme Court where she said at p. 423 “ … where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of
pre-existing non judicial position and actions, it would be contrary to constitutional justice to proceed with a the trial”.
(13) The test to be applied when bias is alleged in the decision making process is the existence of reasonable suspicion and real likelihood of bias. The following passage from the judgment of Murphy J., in Dublin and County Broadcasting Ltd v. IRTC (Unreported, High Court, 12th May, 1989) was open to this court. It reads as follows:
“Certainly it does seem to me that the question of bias must be determined on the basis of what a right minded person would think of the likelihood, of the real likelihood of prejudice, and not on the basis of a suspicion which might dwell in the mind of a person who is ill informed and did not direct his mind properly to the facts … (But) I entirely accept that it would be irrelevant and immaterial in a case such as the present if it was established as a matter of fact that bias was non operative or that the particular person accused of the bias was out voted or whatever. If it is shown that they are on the facts circumstances which would lead to a right minded person to conclude that there was a re-likelihood of bias, this would be sufficient to invalidate the proceedings of the Tribunal”.
(14) Reference was of course also made to Orange Ltd v. The Director of Telecommunications Regulation and Meteor (No. 2) [2000] 4 IR 159 and to Spin Communications Ltd v. IRTC [2001] 4 IR 411. In particular a passage from the judgment of the Chief Justice at p. 185 of the report in Orange was mentioned. Having expressed some doubts about the accuracy of the test propounded by Barron (J)., in that case, in so far as it dealt with the time requirement for the existence of bias and with the necessity for it to be external to the process in question, Mr. Dwyer S.C. nevertheless said that the pre-judgment in this case was in fact external as it was outside the actual merits of the action itself.
(15) Moreover counsel felt that it was purely a semantic argument as to the distinction between bias and natural justice as the underlying requirement of both obliged the decision maker to deal with the issue at hand in a fair and reasonable manner.
(16) No allegation of conscious wrongdoing was being alleged against An Bord Pleanála. The case against the Board was that it was misled by the planning authority’s failure to make known to it the complaints, the pre-judgment, and the existence of Mr. Gough’s report. Accordingly the Board acted under a misapprehension, and therefore for these reasons its decision was also unlawful.
(17) The failure of the Council to make proper discovery which required this court on day 4 of the action to make an order for further and better discovery, was adversely commented upon by the Plaintiff Company, and finally,
(18) Counsel also made some observations on the question of what the appropriate relief might be. These observations, however were not conclusive. It was said that a declaration to the effect that the decision making process of the planning authority was flawed would be of value and in its own right might be sufficient. That submission, however, is not entirely representative of the plaintiff’s view, with its final position being dependent on the ultimate findings made by this Court.
22. Mr. George Brady S.C. outlined the position of Dublin City Council. In the context of the following summary of these submissions, it must be remembered that originally the primary focus of this Defendant was on s. 82 (3A) and (3B) of the 1963 Act as inserted by s. 19(3) of the 1992 Act. Accordingly if my recital of Mr. Brady’s views should appear somewhat brief, the same do not truly reflect the very substantial submissions which were originally made. In any event counsel said:-
(1). Though the two month time limit was no longer material, the decision of the Supreme Court in White v. Dublin City Council did not completely resolve the time factor in this case. Order 84 Rule 21(1) of the Rules of the Superior Court provides that any judicial review application shall be made “promptly” and in any event within three months or six months where certiorari is sought “unless the court considers that there is good reason for extending the period within which the application should be made”. As is clear from the timing of the events outlined earlier in this judgment these proceedings only commenced on the judicial review side on 7th November, 1995. That was well outside the 6 month period specified in Order 84 Rule 21(1) of the Rules and most certainly, it could not be said that the same had been instituted promptly. Therefore the onus was on the Plaintiff Company to establish good reason for obtaining an extension from this court. This the plaintiff had failed to do.
(2). For the purposes of s. 26(4) of the 1963 Act, which contains the “default provisions”, the Supreme Court has decided that despite a decision of the planning authority being ultra vires, that decision, when notified within time, was nonetheless sufficient to prevent the default mechanism from applying. See the State (Abenglen Properties) v. Corporation of Dublin Supreme Court [1984] I.R. 381. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 Mr. Justice Costello held that a similarly flawed (but equally notified ) decision, was nonetheless a decision for the purposes of s. 26(5) of the 1963 Act, which contains the provision enabling an aggrieved party to appeal to An Bord Pleanála. Moreover the learned trial judge indicated that by virtue of his interpretation of this statutory provision, “the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what had happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal restraints, on the proceedings before the Board”. (See page 52 of the Report). Accordingly it is claimed that despite any infirmity attaching to the decision making process or to the planning authority’s actual decision of 11th July, 1994, the fact of Mr. Beades’ appeal, coupled with the Board’s determination of it in accordance with s. 26(5) of the 1963 Act, means that the resulting order of 8th December, 1994 is unimpeachable and remains legally valid. See also Inver Resources v Limerick Corporation [1988] I.L.R.M. 47 and Hogan and Morgan “Administrative Law in Ireland” 3rd ed., 456 321.
(3). The decision of the planning authority was made by Mr. Derek Brady in respect of whom no allegation of pre-judgment or bias is made. In fact it can be said that strictly speaking, the retention application was not in fact dealt with by Mr. Muldowney at all: rather it was handled initially by Mr. Gough and only when his superior disagreed with his resulting recommendation did Mr. McDonnell have a discussion with Mr. Muldowney and accept the report of the latter. So both the report and the recommendation were those of Mr. McDonnell and not of Mr. Muldowney.
(4). In any event what was complained of by Mr. Beades had the status of “allegations” only. These were never verified as being correct. Mr. Beades it is said is a person who has also made allegations against the planning inspector, Mr. Van Der Kamp and against Miss Patricia Hyde who was an official involved when the repairs were carried out to the public house. Given the fact that both Mr. McCarron and Mr. McDonnell had interviewed Mr. Muldowney in respect of the complaints, it was up to both of these to accept his denial and to conclude that there was nothing substantial in the allegations made. It would accordingly have been improper to remove the file from Mr. Muldowney.
(5). In addition it must be remembered that Mr. Muldowney only found out accidentally about the planning retention application (when a report from another section passed his desk) and that Mr. Rory O’Byrne also recommended the taking of enforcement proceedings in this case.
(6). Furthermore though he was not called to give evidence, Mr. Muldowney had denied all allegations on affidavit.
(7). On what constitutes “bias” this court was referred to a number of decisions in particular to the Orange decision of the Supreme Court. See p. 185 of the judgment of the Chief Justice. According to Barron (J). it is necessary in order to establish bias to show that the factors relied upon pre-dated (either) the application for retention or the date of its determination, but that in any event such factors must be extraneous to the subject matter in question. This was not the situation in the present circumstances and accordingly there cannot be any question of bias having been established. See also the judgment of Murphy (J). in particular at p. 241, and Geoghegan (J). in particular at p. 252, all in the Orange case: and finally
(8). Mr. Brady S.C., asked this Court to dismiss the entire claim of the plaintiff company.
23. The submissions advanced on behalf of An Bord Pleanála were made by its counsel, including Mr. James Connolly S.C. These can be summarised as follows:-
(1) the plaintiff company had failed to advance any “good reason” for extending the period specified in Order 84 Rule 21(1) of the Rules of the Superior Court for the institution of judicial review proceedings. In this context it is pointed out, that on the factual side Mr. Beades did not become aware of the existence of Mr. Gough’s report until their conversation on 11th October, 1995. No explanation is offered why such an enquiry by Mr. Beades could not have been carried out earlier. Moreover he was substantially aware of all of the existing facts by the time he lodged his appeal to An Bord Pleanála and certainly was so aware, no later than two months following the decision of that body, which was given on 8th December, 1994. And yet he failed to move until November 1995.
(2) Several decisions were extensively relied upon in the Board’s comprehensive submissions on this point. The judgment of Henchy (J). in the State (Cussen) v. Brennan [1981] I.R. 181 was referred to as were extensive sections from the judgments of Denham J. and Fennelly J. in deRoiste v. Minister for Defence [2001] 1 IR 190. In addition it was pointed out that the term “good reason” was analysed by Costello J. in O’Donnell v. DunLaoghaire Corporation [1991] ILRM 301 and was also reviewed by the Supreme Court in Dekra Éireann Teoranta v. The Minister for the Environment and Local Government [2003] 2 IR 270. Given the requirement of certainty in the planning code it is imperative to move promptly and in any event within the time specified for so doing in the Rules of the Superior Court. No extension was justified on the facts as presented in this case.
(3) The decision of Costello J., in O’Keeffe v. An Bord Pleanála [1993] I.R. 39, which is referred to above, was relied upon as establishing the jurisdiction of the Board to embark upon and determine a planning appeal. According to Costello J. the Board should not concern itself with the validity of the earlier decision or with the legal position adopted before or by the planning authority. Having conducted the appeal in a proper manner, which is evident from the report of the planning inspector, it is claimed that the decision of the 8th December, 1994 is “a stand alone” decision, unaffected by any previous infirmities, whether attaching to the process adopted by or before the planning authority or inherent in its decision of the 11th July of that year.
(4) As of July/August 1994 Mr. Beades was possessed of sufficient information which should at least have obliged him to make further enquiries with regard to, for example, the existence and availability of Mr. Michael Gough’s report. To that extent, knowledge of its existence can therefore be imputed to him as of that time. In any event even if the report had been available, the end result would have been the same. This was confirmed by Mr. Van Der Kamp who in evidence indicated that even if he had the report, which he subsequently read, his recommendation would not have changed. The court should therefore approach this matter in much the same way as the Supreme Court views a request for the introduction of fresh evidence. Is the material in question credible, will it make a substantial difference and could it have been available earlier, if reasonable enquiries had been made? As the relevant report in this case fails all three tests, this court should not be concerned with “due process” for the sake of it, as the result would not have differed.
(5) The case of Hynes v. An Bord Pleanála (High Court, 30th July, 1998, Unreported, McGuinness J.), was referred to as confirming the views of Costello J. in the O’Keeffe decision which is referred to above, and finally –
(6) On the issue of discretion, it was strongly urged that this court, even if so minded, should not grant any of the reliefs claimed. This was necessary in order to prevent any default situation arising and to ensure that Mr. Beades was not immune from the enforcement provisions of the planning code. Moreover there was a public element in supporting the existing situation. Accordingly no order should be made. See State (Abenglen Properties) v. Corporation of Dublin, [1984] I.R. 381, KSK Enterprises Lt. v. An Board Pleanála [1994] 2 I.R. 128, Cavern Systems Dublin Ltd. v. Clontarf Residents Association [1984] I.L.R.M. 24, Foras Aoiseanna Saothair v. Minister for Social Welfare, Supreme Court, 25th May, 1995.
24. Finally Ms. Hyland, Barrister at Law, made submissions on behalf of Ireland and the Attorney General. As will be recalled from an earlier part of this judgment, the constitutional question is no longer relevant following the decision in White. Counsel for the State however made submissions on the necessity to obtain an extension of time under the Rules of the Superior Courts. In this regard she reviewed the relevant facts and applied her resulting analysis to the appropriate principles of law. In so doing she came to a conclusion, which was advanced by way of argument, that the plaintiff company had singularly failed to elicit any or any sufficient information as would justify this court in granting the extension sought. Accordingly, in her submission no relief should be granted.
25. From the above description of the circumstances of this case, there is little doubt but that the main two protagonists are Mr. Jerry Beades and Mr. James Muldowney. I have had the benefit of oral evidence from the former but the latter, though in court for most of the trial and despite having produced for the first time, some relevant documents during the course of it, was not called. Subject to the question of credibility, the plaintiff company, having established in a prima facie way the most material facts upon which it seeks to rely, could hardly be criticised for not calling Mr. Muldowney. Whoever might or might not have called him, the fact of the matter is that this Court was deprived of the benefit of obtaining, first hand, his version of events and of course in the process it was denied the opportunity of seeing and observing him in the witness box. Accordingly the only evidence from Mr. Muldowney is via his affidavit which contains a denial of the most major allegations levelled against him.
26. In considering the credibility of Mr. Beades I have had regard to his repeated tendency in the witness box, of not only straying from the question asked but also of moving onto a totally different topic; which topic at any given time was entirely out of context to the sequence under discussion. Moreover he was quite often very direct and indeed abrasive. He also made a suggestion of bias against the planning inspector simply because Mr. Van Der Kamp, in a professional capacity had previously come across and had some contact with Mr. Muldowney. This allegation is of course entirely unjustified. In addition however there were two further facts which gave rise for concern. The first was his explanation for carrying out the alterations in the first place, which it will be recalled was based on safety and security grounds. This evidence is a feature of the case with which I have reservations. It is my belief, that right from the beginning, Mr. Beades was highly interested in so constructing his building that an additional apartment could be accommodated on the fourth floor. His initial instructions to his agents prove this. His agreement, reluctantly reached, to allow revised drawings to be submitted, most likely did not alter this aspiration. Whilst I appreciate that some undesirable activity might have been predicted, if the building was erected as per the original design, nevertheless it surely must have been the case that other options were available so as to satisfy any security or safety requirements. Furthermore I cannot accept that either urgency or pressure of time meant that he could not have discussed the situation with the planning authority prior to or immediately after the alterations were made. This he failed to do, a failure which contained right up to the time of the phone call with Mr. Muldowney on 11th February, 1994. As a result I have some not inconsiderable reservations, about the truth of this assertion as made by Mr. Beades.
27. The second matter arose in quite an unusual way. After the decision of the Supreme Court in White, but prior to having heard any submissions on what consequences that decision might have had for this case, I was assigned to deal with family law in the family courts. One day Mr. Beades, unannounced and without representation, attended at the court where I was sitting and made an enquiry about the judgment when in fact at that time the case had not even yet concluded. During the few moments of exchanges between both of us, he informed me that he was a member of the National Executive of a very prominent political party in this country. I asked him what relevance that had and wondered aloud as to why he had told me. Of course on the very next occasion on which the case was listed, I informed the parties, all of whom were represented, in open court of what had transpired.
28. I can only conclude that in volunteering this information he had hoped that it might favour his position. In fact, as one might have anticipated, it had the directly opposite effect. As a result of this and of the other matters above mentioned, I adopted an acutely cautious approach in my assessment and evaluation of the overall evidence given by him. It is in the context of that approach, that I have considered the substance of the allegations made by him in these proceedings.
29. Even however with these reservations, I have concluded that the essence of his allegations are correct and in many important respects the same have been corroborated either by correspondence or events, or by independent evidence such as that of Mr. Gough. In this context I consider that the affidavit denial by Mr. Muldowney is inadequate and insufficient to prompt me to reach a contrary conclusion. I therefore accept the core points of Mr. Beades complaints against Mr. Muldowney and also for the reasons hereinafter stated his allegations of pre-judgment and unfairness against Mr. McDonnell.
30. It is important I feel to again stress what these allegations are although the same are comprehensively set out earlier in the judgment. Could I say however, before so doing, that the plaintiff company and Mr. Beades have always acknowledged that the alterations made were not authorised by the original planning permission and that an application for retention would have to be made so as to regularise the position. Such matters therefore are not in issue in this case.
31. I now deal with these allegations and do so in the manner following:-
(a) The first contact of relevance between the individuals in question appear to have occurred followed the lodging of the original planning application in May 1993. Mr. Beades makes the complaint that Mr. Muldowney, at that time, continuously linked the licensed premises with site No. 2 and also that he indicated what would and would not be acceptable to him as a planner. This, if he was to make a favourable recommendation on the then outstanding application. In my opinion these are the type of matters which can quite properly form the subject matter of discussions (frequently had) between planners and there making applications. I therefore see nothing objectionable about what occurred at this time and in addition I should also say that I entirely disregard any suggestion that Mr. Muldowney’s tone or attitude were inappropriate.
(b) The phone call of 11th February, 1994, however, is in a different category as is the original letter of complaint dated the same day. In that a more serious allegation is made against Mr. Muldowney. It is claimed that when informed of Mr. Beades intention to apply, the planner said that such a retention application would be treated with contempt by the planning department. In fact the words given in evidence are slightly different from the phrase used in this letter but in essence the point of complaint is the same. For a developer who had considerable and repeated dealings with the planning authority, this must have been highly relevant, and indeed was treated so by Mr. Beades who in fact sent a copy of his complaint to a member of An Dáil Éireann and requested that T.D. to take the matter up with Mr. Muldowney. Whatever about its seriousness from Mr. Beades view, however it must surely have been a matter of deep and urgent concern to Mr. Muldowney. No attempt however was made by the latter to arrange the meeting as suggested by Mr. Beades and no reply issued to this letter for more than four weeks thereafter.
(c) This delay I have to say I consider surprising. All the more so, because during this time Mr. Muldowney is recommending that enforcement proceedings should be taken immediately. See his memo of 14th February.
(d) By letter dated 23rd February Mr. Beades again writes to Mr. Muldowney and further complains about events which took place on the previous Friday and also on that day. On 19th February he alleged that the planner threatened the manager of the public house with legal proceedings in order to gain access to site No. 2, as the former considered that he had been technically denied access. Whilst I am satisfied that this most probably occurred, I have, nonetheless, decided to ignore it given the absence of any direct evidence from the said manager. What is undoubtedly a fact however is that there was an inspection by two members of the building control section on 23rd February, and this at the same time as Mr. Rory O’Byrne, a Planning Inspector, was also present. Though he was informed by fax on the Monday that Mr. Beades would be on site on 23rd February, Mr. Muldowney himself did not show. However I believe that he was instrumental in having the building control unit make the inspection which it did on that occasion. Mr. O’Byrne, a colleague of his in the Planning Section, told an internal inquiry on 6th December, 1995 that “he thought it most unusual that the building control officers should have arrived to inspect No. 2 Hardwicke Place contemporaneously with him”. This document was admitted in evidence without formal proof.
I can find no response to this letter and no satisfactory evidence has ever been given to explain these events. This is again surprising given the seriousness with which Mr. Beades had treated the situation and his contemporaneous commitment to writing in respect thereof.
(e) On 1st March Mr. Muldowney recommended that High Court proceedings be taken and that before the building was complete, an interim injunction should be obtained so as to have the extra apartment removed.
(f) The public representative above referred to wrote to Mr. McCarron and copied Mr. Beades’ letter of 11th February to the City Planner. That prompted Mr. McCarron to send a memo about the matter to Mr. McDonnell which he did on 22nd February. It is probable that the latter spoke with Mr. Muldowney, as he thinks that the executive planner telephoned Dáil Éireann and spoke with the said public representative and may also have spoken with Mr. Beades. In any event a memo was sent by Mr. Muldowney to the City Planner dated 10th March in which he denied any question of discourtesy as well as claiming that the contempt allegation was totally untrue. He considered the matter serious and intended seeking a retraction.
(g) On 16th March Mr. Muldowney sent a registered letter to Mr. Beades which I am satisfied, that for entirely innocent reasons on both sides, was not received by him. Having quoted from the relevant portion of the letter of complaint dealing with the contempt allegation Mr. Muldowney in that letter said:
“You know that this statement is wholly untrue. Furthermore, I regard it as a slur on my personal character and professional standing within Dublin Corporation. I have always treated you and your agent in a courteous fashion. I am now seeking an unreserved retraction of the sentiments expressed in your letter.”
It is acknowledged that in or about this time Mr. Muldowney had obtained independent legal advice.
(h) On 15th March, 1994 Mr. Beades wrote to the Principal Officer in the Planning Section namely Mr. Joe Scully. He referred to the visit on 23rd February by the Building Control Department. He alleged that “the actions of the planner (were) an unprecedented step of trying to get the other regulatory authorities to act against me”. He then claimed that he was being victimised by Mr. Muldowney. He requested a meeting and expressed concern at the way in which the senior executive planner would deal with the application which he intended to make for planning retention.
32. Accordingly at this time one had the following situation:
(a) the written allegation of discourtesy which is not highly significant,
(b) the written allegation of contempt which is highly significant,
(c) the most unusual events of 19th and 23rd February,
(d) the absence of the requested meeting by Mr. Beades,
(e) the repeated indication by the plaintiff company of its intention to apply for planning retention (see also the letter to Mr. O’Byrne dated 4th March),
(f) the written allegation that the Council was acting in a heavy handed manner, and
(g) the most serious written allegation that Mr. Beades was being victimised by Mr. Muldowney in the planning process with the result, that the developer expressed acute concern at the way in which his planning retention application would be dealt with by that senior executive planner.
33. From Mr. Muldowney’s point of view the position was that:
(a) these allegations had been brought to the attention of the City Planner,
(b) he in turn had requested Mr. McDonnell to take certain steps in respect thereof,
(c) Mr. McDonnell, in response, speaks with Mr. Muldowney who denies the allegations contained in the letter of 11th February; though I cannot identify any reply to the intimidation allegation as contained in the letter of 15th March,
(d) the Senior Executive Planner believes that these complaints are a personal slur on his character and also a slur on his professional standing within the Council, and
(e) in respect thereof he seeks an unreserved retraction and also obtains independent legal advice on these issues.
34. Even with these facts alone I cannot but believe that a stage had been reached where, for whatever reason, there was a serious problem between these people, one that quite evidently reflected in both a professional and personal way on the independence and integrity of Mr. Muldowney. The situation demanded firm and decisive action by those at senior management level within the Department or even higher, but unfortunately such a response was not forthcoming. From this criticism I fully absolve Mr. Gough who in my view made the entirely correct decision to deal with the application himself. Regretfully events intervened and instead of matters being resolved in that way the situation from the Council’s point of view was to deteriorate further.
35. As subsequent events unfolded matters indeed deteriorated and did so significantly. A copy of Messrs Brendan O’Mahony and Company’s letter of 11th March, 1994, sent to the Planning Department, found its way to Mr. Muldowney. Thereon, under his hand the following notation appears:-
“This matter has been considered at length and discussed with Mr. P McDonnell D.D.P.O. the recommendation in relation to the extra apartment at roof level will be to refuse and similarly in relation to the top hung sash windows.
James Muldowney
22/3/94”.
36. In response to a claim that this was proof of pre-judgment, not only on the part of Mr. Muldowney but also on the part of Mr. McDonnell, the officials from the City Council who gave evidence furnished an almost identical explanation for the entry. It was said by then that the note must be looked at and considered in the context of enforcement proceedings and not purely from a planning point of view. Having been informed that it was the developer’s intention of applying for retention, it was relevant for the enforcement section to have a planning view before it finalised its reaction to such an application if and when it was submitted. It was claimed that such a view might also have an influence on how a court might exercise its discretion under s. 27 of the 1976 Act. It was therefore submitted that looked at in this way, the note was entirely different from, and should not be equated with, the holding of a pre-judgment view.
37. I must with respect entirely reject this explanation. Firstly, apart from Mr. McDonnell, the other Council witnesses who gave evidence on this point, namely Messrs. McCarron, Brady and Scully, were not a party to the underlying discussion between Mr. Muldowney and Mr. McDonnell. Therefore at best their evidence could only be of a general nature. Secondly, whilst Mr. McCarron knew of the letter of 11th February, 1994, and also of the allegation of intimidation contained in the letter of 15th March, he was not otherwise kept updated as matters progressed. Thirdly, Mr. Derek Brady had no knowledge whatsoever of the serious issues between Mr. Muldowney and Mr. Beades. Fourthly, Mr. McDonnell has a only vague recollection of whatever conversation Mr. Muldowney was referring to. Fifthly, the person who could have given first hand and direct evidence of this was never called. Sixthly, I have no evidence as to what was discussed “at length” between these planners, for example how much, and with what accuracy, did Mr. Muldowney inform Mr. McDonnell of the reasons advanced by the developer for the alterations carried out to his property. In addition as the wording itself clearly demonstrates, this was not the recording of any provisional or tentative view, rather it was categorily stating that the recommendation of the senior executive planner, now apparently approved by the Deputy City Planner, will be that any planning retention application will be refused (emphasis added). Therefore I am quite satisfied that this was far more than simple information gathering to help the enforcement section on what course that unit might take with the intended High Court proceedings. It was in my view a declared position on the issue.
38. It is also worth mentioning that there was nothing new in the solicitor’s letter of 11th March, 1994. As far back as the 11th February of that year, Mr. Beades had informed Mr. Muldowney of his intention to apply for planning retention. That intention was repeated on several occasions thereafter including the letter of the 4th March to Mr. O’Byrne. In addition the planning retention application had not been lodged at that time and indeed was not submitted for a further two months. Moreover there was no urgency from the enforcement section’s point of view, as is proved by the fact that the High Court proceedings were not issued until September of the following year. I therefore cannot hold with this suggested explanation.
39. As a matter of certainty some unauthorised works or uses must pre-exist a planning retention application and very often these come about in the context of an earlier planning permission which has not being fully adhered to. Therefore it must frequently be the case that some conflict exists between what is built and what is authorised. If a planning authority could legitimately have the view, as expressed in the aforesaid note, at a time when a planning retention application had not even been submitted and therefore the details not even outlined, there would in fact be no point in this statutory entitlement being afforded to a member of the public. Such a position could clearly circumvent the will of the Oireachtas and would be contrary to the duty imposed on planning authorities to consider and determine, on its merits, such an application and to do so in the same way as any other planning application. Any contrary position is in my view untenable. I therefore believe that this constitutes evidence of pre-judgment and of a declared position by both Mr. Muldowney and Mr. McDonnell.
40. Before I outline the manner in which the application itself was dealt with, could I make an observation on the corporate response to Mr. Beades complaints. As previously stated there was no formal method at that time for dealing with a complaint against a planner. That in itself is not crucial if the informal way was transparent and effective. Unfortunately this case shows that major shortcomings existed in how, or more accurately is how not, this matter was dealt with.
41. Could I immediately say that the conclusion which I have reached on the validity of these complaints has been made solely on the evidence before me. From the Council’s point of view I am satisfied that once these allegations appeared to be serious, at least prima facie so, and once they could not be described as groundless or without foundation, then that situation by itself was a sufficient basis for the City Council to have properly investigated, dealt with and reached a conclusion on such matters. This for the protection of Mr. Muldowney every bit as much as dealing with a member of the public. Unfortunately the Council did not discharge its responsibilities in this regard. In so saying I wish to make it quite clear that I am not imputing or implying any question of bad faith on the part of its officials. Rather I believe that this occurred by simple but serious omission along the lines of command and responsibility.
42. What the Council in fact did appears to have been as follows:-
(a) On receipt of the complaints addressed to Mr. Muldowney the letters in question were sent to him by way of internal distribution and not copied to any senior member of staff. The city planner most likely would never have known about this matter unless the public representative had copied to him Mr. Beades’ letter of 11th February. His response was to write a memo to Mr. McDonnell on 22nd February, 1994. In that he sought certain information and directed that “the development proposed (be) considered further as a matter of urgency”. He was also aware of the victimisation claim as on his copy of that letter (dated 15th March, 1994) he made a handwritten note addressed to Mr. Scully which is dated 21st March. In that he suggested a meeting which never took place and what Mr. Scully’s response to the note was, remains quite unclear. Certainly Mr. McDonnell believes that he never saw it and neither does Mr. Gough. In any event I do not believe that Mr. McCarron ever received a reply to either his memo or his note. This, apart from a memo dated 10th March from Mr. Muldowney. Otherwise I do not think that the city planner was involved or that there was any follow up to his directions.
(b) Mr. McDonnell spoke to Mr. Muldowney about the contents of this memorandum which, incidentally was never sent directly to Mr. Muldowney. He the Deputy City Planner thinks that a phone call was made to the public representative and also to Mr. Beades. I doubt strongly if matters were taken any further by Mr. McDonnell. This save perhaps from some vague conversation which he may have had with Mr. Muldowney.
(c) With regard to the Senior Executive Planner, I am satisfied that he did not keep Mr. McDonnell informed in any progressive way, as to what was transpiring between himself and Mr. Beades.
(d) This is largely what the corporate response entailed.
43. Relating to the application itself, it would appear that following his contact with Mr. Rory O’Byrne a Planning Inspector, Mr. Beades was advised to go and see Mr. Michael Gough which he did. Apparently that meeting was arranged by the said Mr. O’Byrne who also had some conversation with the Senior Planner regarding his own feelings of unease about matters. As outlined above (see para. 14 supra) this meeting occurred on 11th May, 1994 at which Mr. Beades freely spoke to Mr. Gough about his concerns regarding fair treatment and also about the alterations to the building which had earlier been made. Having considered what was said, Mr. Gough gave as assurance to the plaintiff that he would receive fair play in the Planning Department and as a guarantee of that, he indicated that he himself would deal with the retention application. In my view this was a perfectly proper course for the Senior Planner to have adopted and in this context his decision not to speak with Mr. Muldowney about the application was fully justified.
44. In accordance with his word Mr. Gough dealt with the retention application and did so in the normal manner. His resulting report contained a recommendation to grant permission subject to conditions. He sent that and the “green form” to the Decisions Section of the Council which, having formatted the documents, would then, in the normal course of events, send the same on to the Assistant City Manager for his determination. This process usually takes between 3 and 5 days.
45. At this juncture could I say that much of the evidence tendered by the Council’s officials including the Assistant City Manager, was directed towards establishing that by far the better planning view was that arrived at by Mr. Muldowney. In addition Mr. Brady, Mr. McCarron and Mr. McDonnell were all very strongly of the opinion that the application should be refused. These matters even if correct, are in my opinion entirely irrelevant. I see it as no part of my responsibility to adjudicate on the merits on the planning application. What is at issue is the fairness and impartiality of the process. If that had existed then, as is freely admitted by the plaintiff company, the latter could have no complaint even if the decision was strongly adverse to its position and negative to its cause.
46. In any event following a meeting on the 5th of July with Mr. Beades on an unrelated matter, Mr. Gough returned to his office and instructed a Senior Staff Officer in the Decisions Unit to locate the file. It was then found. And the meeting of 8th July took place. Mr. Gough’s recall of events around this time is slightly different to that of Mr. McDonnell. And also on an important point his own version is in conflict with what he told an internal inquiry in late 1995. As part of this investigation, which was established following the institution of the judicial review proceedings, Mr. Gough stated and maintained that he only became aware of the planning refusal after it had been given.
He said that he had no forewarning before the Assistant City Manager made his decision. That however was not his evidence in court where he agreed that a meeting did take place on 8th July. Disregarding for a moment any distinction between “a recommendation” and the ultimate “decision”, (for knowledge purposes) I have, despite this inconsistency, nevertheless come to the conclusion that Mr. Gough is a truthful witness and his recall of the main events is largely correct.
47. At the meeting of 8th July, I am satisfied that Mr. Gough was shocked to discover what in fact had taken place. Even though his junior, Mr. Muldowney apparently had gone to the Decisions Unit, taken the file, saw the favourable recommendation, went to Mr. McDonnell and then drew up a report coming forcibly to a conclusion contrary to that of his superior. He may or may not have gone to Mr. Gough before 8th July though I have my doubts that he did. Mr. Gough informed the court that he had no difficulty in being overruled but it was the manner and way in which it had happened that caused him distress. I am satisfied that prior to this meeting both Mr. Muldowney and Mr. McDonnell had made a decision which effectively foreclosed on any real possibility of there being a meaningful exchange of views between planners, who held contrary opinions about this development. As Mr. Gough recalled, Mr. McDonnell told him that he had made the decision and not merely made a recommendation.
48. An extraordinary feature of the case then occurred. Mr. Gough’s report was removed from the planning file by a person who to this day, and despite the internal inquiry, has never been identified. It is admitted by Mr. McDonnell that this was wrong. In any event Mr. Gough describes his reaction to the situation as follows:-
(1) It was as if his report had been “airbrushed” out of history,
(2) for a junior to act as Mr. Muldowney had done, was unprecedented within the Council and was a situation which he had never previously encountered,
(3) his report, which was addressed to Mr. McCarron, should at least have been seen by the City Planner, and, as was not an uncommon practice where there were conflicting views of senior people, it should also have been sent to and seen by the Assistant City Manager,
(4) he felt embarrassed about the situation,
(5) he felt that he had failed Mr. Beades and that the latter had not obtained fair procedures,
(6) he also felt that he had got “mugged and muzzled”.
49. This description is not my summary of the situation but largely is that of Mr. Gough himself. Mr. Gough, to my knowledge has no axe to grind and could not be described as a maverick in public life. At the time of the hearing he was a Director of Economic Development and Planning with Dun Laoghaire Rathdown County Council and had been in the public service for over 30 years. For a great deal of that time he had worked as a planner. I therefore treat his views as highly credible and in my opinion his conclusions are fully justified.
50. I reject the suggestion put forward on behalf of the first named defendant in this context. I consider that prior to the 8th July meeting, the matter by way of firm recommendation, had been determined by Mr. Muldowney and Mr. McDonnell. No genuine opportunity existed for the conflicting views of the senior planner to be considered seriously or at all. Also I am satisfied that it is quite an incomplete representation of the situation to say, that the July report was in effect that of Mr. McDonnell. Although he countersigned it on 8th July I believe that this was largely a matter of formality. Mr. Muldowney played a very significant role in the process and did so at a time when the allegations made against him had not even been properly investigated let alone resolved one way or the other. Moreover this report of July is but a furtherance of the decision which both people had earlier made in March of that year. I believe that justice clearly demanded that neither of these individuals should have been involved in the adjudication of the planning retention application made by Mr. Beades.
51. This last mentioned view of mine was not shared by Mr. McDonnell, Mr. McCarron or Mr. Brady. Not even on reflection or by way of best or preferred practice; they saw nothing even remotely troublesome about the process. Mr. McDonnell felt that one could separate (and therefore ignore) personal matters from one’s professional obligations as a planner. Both Mr. McCarron and the then Assistant City Manager felt that there were sufficient safeguards in existence in that Mr. Muldowney was reporting to a person who held a position in senior management. I regret but I cannot agree with these observations. It seems to me that this approach, putting it as modestly as possible, overlooks the critical attribute of not only carrying out one’s function in an objective way but also of being seen to so do. I do not believe that any reasonable, objective person would have confidence in a process where the structure not only permitted but also apparently approved of such working practices. Whilst it is true that the matters complained of were mere “allegations” they remained with the statute only because of the Council’s inactivity. On any interpretation of the events these were serious and could not lightly be dismissed as unfounded or groundless, and certainly could not be so considered, simply on the word of the person against whom the complaints were made. No one in authority ever even asked Mr. Beades about these matters. Until the same had been reasonably investigated and a conclusion reached, the file should have been dealt with in the manner suggested by Mr. Gough or in a comparable or similar manner. The note of the 22nd March, 1994 in my view negatives, virtually in its entirety, the alleged supervisory role of Mr. McDonnell, who incidentally most probably had not even read Mr. Gough’s report when he gave his unconditional approval to Mr. Muldowney’s involvement in July 1994. Therefore, despite the aforesaid views from these senior officials, I simply cannot agree with their conclusions and therefore remain of the opinion as outlined above.
52. The report of Mr. Muldowney countersigned by Mr. McDonnell is then sent to the Assistant City Manager Mr. Derek Brady. On that he makes a decision to accept the recommendations contained within it and to refuse permission. When adjudicating on the application Mr. Brady had no knowledge whatsoever:-
(a) of the contempt allegation,
(b) of the intimidation allegation,
(c) of the letters sent by Mr. Beades to various officials within the planning department,
(d) of Mr. McCarron’s involvement,
(e) of the fact that Mr. Muldowney had written to Mr. Beades categorising the complaints as constituting a serious slur on his personal and professional integrity and had sought a full retraction in respect thereof,
(f) of the fact that Mr. Muldowney had obtained or was about to obtain legal advice,
(g) of the existence of the note of 22nd March, 1994,
(h) of Mr. Gough’s decision (for the reasons above stated) to personally deal with this file,
(i) of the fact that Mr. Gough had so dealt with it,
(j) of the circumstances in which his juniors involvement had come about,
(k) of the existence of the contrary report,
(l) of the fact that such report had been removed from the planning file,
and
(m) of Mr. O’Byrne’s personal concerns about matters.
In essence the Assistant City Manager was totally oblivious in virtually every respect, to what had transpired during the course of the process. Whatever personal knowledge Mr. Brady may legitimately have acquired previously about this development, and however strongly he felt that the proper planning decision was to refuse permission. Nevertheless I am firmly of the opinion that the process was entirely flawed and that his decision was based on an incomplete and screwed version of the true circumstances.
53. Following the lodging of an appeal to An Bord Pleanála, the Board on 11th August, 1994 wrote to the Planning Department and sought certain information including “copies of any technical or other reports prepared by or for the planning authority in relation to the application”. The response, was to send a copy of the July report which was re-dated the 6th September. It was under the typed name of Mr. Muldowney but without his signature or the signature of Mr. McDonnell. In addition what has been referred to as the “additional comments”, again been those of Mr. Muldowney, were incorporated into the covering letter of 7th September. So both of these documents were sent to An Bord Pleanála. Further material and in particular Mr. Gough’s report were not forwarded and neither was any of the correspondence containing the complaints and allegations made by Mr. Beades. The Planning Inspector, like the Board, was entirely oblivious to the background and to the involvement of Mr. Gough. In that and in all respects both Mr. Van Der Kamp and the Board, with the material which had been supplied, acted quite properly. Unfortunately, however, without any wrongdoing on its part, the Board was deprived of significant documentation which in my view should have been sent to it either as part of the planning file or else separately. In fact all of the relevant correspondence and internal notation should have been on the planning file once the retention application was received. If that had happened it would have had to be forwarded to An Bord Pleanála.
Whether or not the Inspector or the Board would have been influenced by the background or by Mr. Gough’s report is not in my view, at this juncture, relevant. I therefore do not consider as material the opinion of Mr. Van Der Kamp when he informed the court that having read Mr. Gough’s report, his conclusions would not have differed. One cannot determine this case in that manner. One also cannot say how the Board would have reacted to the allegations or to Mr. Gough’s report. I therefore believe that the documentation sent by the planning authority to the Board was grossly inadequate and incomplete.
54. In addition complaint is made that Mr. Muldowney’s report and/or the covering letter of 7th September contained matters which were highly prejudicial, inaccurate and misleading. Whether that be a correct conclusion or not, is something which I do not have to decide. What is clear however from the Inspector’s report dated 30th November, 1994 is that Mr. Van Der Kamp had considerable regard to the planning authority’s views and extensively dealt with these in several passages throughout his report. One can only speculate at this point in time as to how much reliance, if any, would have been placed on the efficacy or reliability of Mr. Muldowney’s report, if the true facts had been disclosed and thus known to the Inspector or the Board.
55. The first legal issue which I am required to deal with is the necessity for the plaintiff company to bring itself within Order 84 Rule 21(1) of the Rules of the Superior Courts. That Order reads as follows:-
“21(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari unless the court considers that there is good reason for extending the period within which the application shall be made”.
Though this time requirement was not raised until after the White decision nevertheless it is one which I think the defendants are entitled to have aired and accordingly I have received submissions thereon.
56. On this point the submissions of An Bord Pleanála have been most helpful as these have set virtually all of the relevant authorities. On the assumption that one could argue that the judicial review proceedings were not brought “promptly” or within the time specified in Order 84 Rule 21(1), the court must therefore see whether there exists “good reason” for extending the period within which such an application can be made. In passing I note that no suggestion has been made that different considerations might apply, given the direction of Laffoy J. in February 1996 that this action should continue by way of plenary proceedings.
57. In De Róiste v. Minister for Defence, Ireland and the Attorney General, [2001] 1 IR 190, this point was analysed by Keane C.J. who at p. 196 of the report summarised the relevant principles as follows:-
“The courts have an inherent jurisdiction to dismiss proceedings where the party instituting them has been guilty of inordinate and inexcusable delay. However, even where the delay is both inordinate and inexcusable, the court must decide whether, having regard to the facts of the particular case, the balance of justice is in favour of, or against, its being permitted to proceed. Finally, as stated by Finlay C.J. in Toal v. Duignan (No. 1) [1991] 1 ILRM 135 at p. 139 …
“those principles are of general application. In the case of proceedings by way of judicial review seeking an order of certiorari such as the present, it is also well established that the applicant for certiorari may be held to disentitle to relief where he has been guilty of unreasonable delay”.
58. In her judgment in that case Denham J. deals extensively with this issue. For the purposes of this case it is sufficient to state firstly that the court, in pursuit of the requirement of justice, has an inherent discretion to extend or refuse to extend time, secondly, that this discretion is not absolute but must be exercised in accordance with principle and thirdly, that all the circumstances of any given case must be considered including the conduct of the parties, the effect which the impugned decision may have or may have had on third parties and the type of relief sought. At p. 208 of the report the learned judge, having set out a non exhaustive list of relevant considerations then said “it is clear from precedent that the discretion of the court has ever been to protect justice”.
59. This matter was again considered by the Supreme Court in Dekra Eireann Teoranta v. The Minister for the Environment [2003] 2 I.R. 271. That case concerned Order 84A of the Rules of the Superior Courts as inserted by the Rules of the Superior Courts (No. 4) (Review of the Award of Public Contracts) 1998. Though the wording of Rule 4 is in part, different from Rule 21(1), and whilst clearly the underlying subject matter of that case is also different, nevertheless the general principles applicable are similar. For present purposes, however, it is not in my view necessary to trespass upon the comprehensive analysis of the relevant case law carried out by Denham J. and Fennelly J., save to indicate that, leaving aside the specific Rule at issue, the court did not otherwise alter, vary or change the law as outlined in De Róiste.
60. There is one further case which I should refer to and that is O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301. Costello J. at p. 315 of the report said “that the phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend a time merely because an aggrieved party believed that he or she was justified in delaying the institution of the proceedings. What the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action …”
61. In applying these principles it seems to me that it was reasonable for the plaintiff company to have pursued its appeal to An Bord Pleanála prior to embarking upon this process of litigation. A favourable result from that body would of course have avoided these proceedings. I accept the evidence of Mr. Beades that whilst he knew in July 1994 of the involvement of Mr. Gough, he was not aware at that time of the fact that a written report had been made by him, or that it had been placed on the planning file, or that it had been converted (with the green form) into what effectively was a draft manager’s order containing a notification to grant the permission sought. Whilst it is true that, from the planning file he could have seen the typed name of Mr. Muldowney on the report which went to the Board, he had no other means of ascertaining the true position unless he either took proceedings or else obtained some internal information from a knowledgeable Council official which may reasonably have led him to make further enquiries. If he had taken these judicial review proceedings much earlier he was seriously exposed to the criticism of permaturity. In that regard I believe that the advice of his lawyers, whom he consulted after the Board had made its decision, to move cautiously and to exercise restraint was both prudent and wise. In particular, this was so in view of the serious and personal nature of the complaints which he wished to advance. In addition to his own evidence it appears to me that he was fully justified in seeking some further evidence to support his contention. As I have just indicated it seems to me that in the absence of proceedings the most probable source of any such information was from some Council official who had an involvement in the process. This quite evidently would be both sensitive and difficult, given the continuing service with the Council of those who might have sufficient knowledge to assist. Though there is a certain amount of vagueness in the evidence with regard to timings, I am nevertheless satisfied that it was not until October 1995 that Mr. Beades obtained from Mr. Gough a much more comprehensive account of the latter’s involvement in the process and also of the involvement of Mr. Muldowney. Once Mr. Beades knew of Mr. Gough’s written report and the latter’s belief that it had been “pulled”, as well as having a greater understanding of Mr. Muldowney’s role, proceedings were instituted within a matter of weeks. It is not in my view a sufficient answer to suggest that he could have obtained this information from the planning file as evidently neither Mr. Gough’s report on the notation of the 22nd March, 1994 appeared on that file. Whilst I fully accept that proceedings cannot be deferred until an applicant is subjectively satisfied as to his “proofs”, nonetheless given the nature of the proceedings and the other circumstances outlined above, it seems to me that a deferment until November 1995 was in the circumstances of this case justified. In this context I do not believe that there are any third parties whose rights have been or will be adversely affected by this decision. Moreover given my findings on the substantive action I am firmly of the opinion that an enlargement of time is essential “to protect justice”.
62. The second matter of law which arises relates to the flawed process which I have found to exist in the planning authorities consideration of this matter. Considerable debate was held on what precisely “bias” was and whether it could be said to have existed in this case. Several cases were referred to in argument including Dublin and County Broadcasting Limited v. IRTC, (Unreported, High Court, 12th May, 1989), Dublin Well Women Centre Limited v. Ireland [1995] 1 ILRM 408, Orange v. Director of Telecomms (No. 2) [2000] 4 IR 159 and Spin Communications Limited v. IRTC [2000] ILRM 98.
63. The concept of bias in the words of O’Flaherty J. in O’Reilly v. His Honour Judge Cassidy and Others, [1995] 1 I.LR.M. 306 “is probably … as old as the common law itself …”. “It developed through cases considering material interest. It also arose in cases on prejudgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this weather 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”. See the decision of Denham J., giving the judgment of the Supreme Court in Dublin Well Women Centre Limited & Others v. Ireland and the Attorney General & Others [1995] 1 ILRM 408. “Actual” bias is sometimes also known as “conscious” bias whereas objective bias is also known as “unconscious” or “perceived” bias. In whichever category it is alleged that bias exists, the court called upon to decide its presence or absence is not “in this slightest degree” concerned with the merits of the decision or, in the case of objective bias, with the manner in which the judge or Tribunal has reached that decision. See the judgment of Keane C.J. in the Orange case at p. 185 of the report. Immediately following on from that observation the Chief Justice said-
“In such cases, the courts proceed on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias. That view of the law is also made clear by the recent decision of this court in Radio Limerick One Limited v. IRTC [1997] 2 I.R. 291. As it was pointed out in that case at p. 315, the bias may take a variety of forms:-
‘The decision maker may have a financial or propriety interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias’.”
The learned Chief Justice then formulates the test, when dealing with perceived bias, as being “(it is) that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias”.
64. In the same case Mr. Justice Barron deals with this concept at pages 221 et seq. of the report. In law he said that bias “is any relationship, interest or attitude which actually did influence or might be perceived to have influenced a decision or judgment already given or which might be perceived would influence a decision or judgment yet to be given. The general nature of the relationship, interest or attitude is not capable of precise definition. The relationship may be family, social or business. The interest may be financial or propriety. The attitude may be one of goodwill or ill will”. The learned judge then described the test as being “ … that once there exists a relationship, interest or attitude for which bias may be established, it will be treated as established if a real risk, meaning a real possibility, exists that such factor influenced or would influence the decision even though it did not nor would do”. In addition Barron J. indicated with clear certainty, a view subscribed to by the other members of the court, that the bias alleged must predate the process or decision which is being impugned and cannot come into existence during the course of either. He also explained that any decision affected by objective bias is not allowed to stand because there is a perception that in the absence of the relationship, interest or attitude relied upon, the decision might have been different. With the result that in his view there were two basic matters to be considered, “first, has it been shown on the facts that a factor existed,(second) what weight must be given to such factor before it can be taken into account”.
See also the judgment of Murphy J. and Geoghegan J.
65. The importance of the requirement that bias must exist in a manner extraneous to the process was again fully dealt with by the Supreme Court, through the judgment of Murray C.J. (as he now is), in Spin Communications Limited v. IRTC and Another [2002] 1 ILRM 98. An admirable and accurate summary of that judgment appears from the head note which reads as follows:-
“(1) in cases where objective bias on the part of a decision maker is alleged, the courts proceed on the assumption that the decision must be set aside if there is a reasonable apprehension of bias, although there is not the slightest indication that the decision maker was in fact actuated by bias. The test to be applied in determining what constitutes objective bias on the part of an adjudicator – whether in the context of judicial proceedings, administrative or quasi judicial proceedings before tribunals, or other administrative bodies – is whether there is a reasonable apprehension or suspicion that the decision maker might have been bias: i.e. whether, although there was no actual bias, there is an appearance of bias. In order to establish objective on the part of the adjudicator it must be shown that prior to the making of the decision, there existed some factor which was external or extraneous to the decision–making process and could give rise to a reasonable apprehension that the decision-maker might have been bias.
(2) There is a clear distinction between the existence of factors external or extraneous to the decision-making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. If a decision maker pursues a line of enquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias, but rather it falls to be reviewed in accordance with the requirements of fair procedures and natural justice. This is because the “factor” involved is internal and not external or extraneous to the decision-making process …”.
66. As appears from the foregoing authorities:-
(1) Justice must be done and must “manifestly be seen to be done”,
(2) When dealing with an allegation of objective or perceived bias the decision will be set aside if there is a reasonable apprehension or suspicion that the decision maker might have been biased,
(3) In adjudicating upon such an issue the court is not concerned with the merits of the decision,
(4) For bias to be established there must exist a “factor”, (so termed by Barron J. in Orange see p. 222 of the report)) which but for its presence might have resulted in the decision being different,
(5) That factor must predate the decision impugned or the process being challenged,
(6) If, on the other hand such a factor comes into existence during the course of the process, the case falls to be determined in accordance with fair procedures and constitutional justice but not under the heading of bias,
(7) There is no exhaustive definition, list or description of what might constitute such a “factor”, but
(8) “ Inter alia”, prejudgment, pre-determined belief or outlook, prior involvement and personal attitudes and belief, all will be regarded as sufficient depending on the overall circumstances of each case.
67. In determining whether the concept of bias applies to this case it is necessary to identify the time at which the matters relied upon first arose. As previously set out in an earlier part of this judgment, I have decided that the reference by Mr. Beades to his or his family’s acquaintance with Mr. Muldowney or his family, many years prior to any relevant event, was too vague and uncertain to form any basis for the application of this doctrine. Likewise I have held that all contact and discussions between Mr. Beades and Mr. Muldowney during the course of the original planning application were perfectly proper and therefore were of no significance in this context. Consequently prior to February 1994 I cannot see in the evidence any matters which assist the plaintiff in this regard.
68. The first events of potential significance were the phone call of the 10th/11th February 1994 and Mr. Beades letter of the 11th. It will be recalled (see paras. 7 and 8 supra) that during the course of this conversation Mr. Muldowney told Mr. Beades that any retention application made by him would be treated with contempt. This in my opinion, is the first fact, in point of time, which could be relied upon as a foundation for establishing bias. And of course thereafter the multiple other matters outlined above followed, including the events of the 21st February, Mr. Muldowney’s assessment of Mr. Beades allegations, (as evidenced in his letter of 16th March) as well as the notation of 22nd March, 1994 (see para. 19). The events which occurred after the 13th May, most probably, can only be described as part of the retention process and therefore cannot be said to have predated that event. Whilst it is arguable that all matters which occurred prior to that date can be said to have predated the planning process, likewise it is arguable that once Mr. Beades had informed Mr. Muldowney of his intention to make the retention application, the relevant sequence of events commenced, albeit informally, at that time. That date is the date of their first contact in February 1994. Consequently if that be correct, all matters which the plaintiff relies upon, occurred within the retention application process itself or were so interconnected with that process that they ought properly to be regarded as part thereof. Being of the view that the latter position is probably more correct than the former, and also because of the uncertainty created by the fact that neither Mr. Muldowney nor Mr. McDonnell were personally the decision maker, I have decided against applying this doctrine to the facts of the instant case.
69. That conclusion however in no way decides the matter. This because the principles of natural and constitutional justice are available and are quite appropriate in their application to the findings which I have already outlined. I have no doubt but that the retention application was not considered fairly or impartiality or on its merits. For whatever reason Mr. Muldowney had formed a fixed and immoveable determination to ensure, that irrespective of the rights and wrongs of the situation, the application would be refused. This approach, at least in part, was prompted by his driven desire to make certain that the integrity of what some Council officials described as the “negotiated permission” (referring to the original grant made in July 1993) would be upheld. This fatally comprised his duties as is evident from his remarks and actions which have been previously outlined as well as his written prejudgment of the application. Again for whatever reason, but with equal consequences, Mr. McDonnell pursued a similar goal. These infirmities, together with the manner in which the application itself was in fact dealt with, permeated the entire process including the decision of the Assistant City Manager who, save in the most unusual circumstances, would follow the advice of the Dublin Deputy City Planner. Accordingly I have no difficulty in concluding that both the process and the decision were reached in a manner contrary to fair procedures and involved a breach of natural and constitutional justice.
70. If therefore the decision of the planning authority remained a valid decision I would have been prepared to quash it. However the provisions of s. 26(5) of the Local Government Planning and Development Act 1963 provide that where an appeal is taken and the Board issues a decision, that decision “shall operate to annul the decision of the planning authority as and from the time when it was given”. It is therefore argued that the decision of the City Council no longer exists and consequently is incapable of attracting an order of certiorari. In the State (Abenglen Properties Limited) v. Dublin Corporation [1984] I.R. 381 the Supreme Court decided that an ultra vires decision of a planning authority, (but notified within “the appropriate period”), was nonetheless a decision which prevented the operation of the “default provisions” of s. 26(4)(a)(b) of the 1963 Act. In circumstances analogous to the last mentioned case, Costello J. in O’Keeffe v. An Bord Pleanála and Others [1993] 1 I.R. 39 held that a similarly flawed decision, (but one again notified within time), was nonetheless a decision for the purposes of the appeal provisions contained in s. 26(5) of the 1963 Act. It is therefore suggested that once there has been an appeal to the Board and once the Board has issued its decision, then both the process and decision of the planning authority are immune from judicial scrutiny.
71. In support of this view reliance has been placed on the following passage from the judgment of Costello J. in O’Keeffe which appears at p. 52 of the report. The learned judge said “… I will assume that it (the decision of the County Manager to grant permission) was made ultra vires and that as a matter of law he should have carried out the direction given to him by the Council’s elected members. But I think I should construe the section as meaning that even though he may have acted ultra vires the decision is valid for the purposes of the appeal provisions of subs. (5) just as it is valid for the default provisions of subs. (4). The Oireachtas clearly intended that if a notice of appeal was served within the statutory period then the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal constraints, on the proceedings before the Board. The Board had no jurisdiction to consider the validity from a legal point of view of the County Manager’s decision … and it seems to me to be contrary to the proper construction of the section now to hold that the Board lacked jurisdiction to entertain the appeal merely because the County Manager’s decision was ultra vires”.
72. It seems to me that in the above quoted passage, Costello J. was dealing with an entirely different matter to that which presents itself in this case. In O’Keeffe, what the learned judge was deciding was whether or not An Bord Pleanála had jurisdiction to entertain an appeal notwithstanding the invalidity, on jurisdictional grounds, of the decision appealed from. That issue does not arise in this case. Secondly, as stated by Costello J. at p. 56 of the report, his decision was not one made on principle but rather was confined to the precise statutory provision in question. Thirdly, it is by no means certain, that even by analogy, the same legal outcome would follow where fair procedures and natural and constitutional justice have been successfully relied upon. Henchy J. adverted to this distinction in The State (Abenglen Properties) where having referred to s. 26(4)(a)(iii) of the 1963 Act he said “this section has no application to a case such as the present, where there is no violation of the requirements of natural justice and where…” This in my view is supportive of the view that in both The State (Abenglen Properties) and in O’Keeffe, the courts were dealing with the correct statutory interpretation of a particular provision of the 1963 Act and were not considering the consequences, for the process or decision of a planning authority, where both were unsustainable by reason of a failure to apply fair procedures and natural and constitutional justice. In any event the precise issue under discussion does not directly arise in the present circumstances as in my view the appeal process itself was also flawed.
73. This conclusion is arrived at by reason of the planning authority’s failure to transmit to the Board full documentation. This failure had the direct consequences of neither the planning inspector or the Board having available to them a complete picture of the relevant events which had previously transpired including of course Mr. Gough’s report. Indeed the letter of 11th August, 1994, from the Board to the City Council, may well have included a request for this report where, at para. 8 thereof the Board requests “copies of any technical or other reports prepared by or for the planning authority in relation to the application”. Indeed, that report is also covered at least prima facie by s. 6(b) of the Local Government (Planning and Development) Act 1992. That sub-paragraph reads as follows:-
“6. Where an appeal is made to the Board the planning authority concerned shall, within a period of 14 days beginning on the day on which a copy of the appeal is sent to them by the Board, submit to the Board –
(b) a copy of any report prepared by or for the planning authority in relation to the planning application and …”
As a result of these matters I believe that though entirely blameless the Board acted under a misapprehension regarding the true situation. In my view before it could come to a fully informed decision it would have to have information about the entire background, insofar as that was directly or indirectly relevant to planning issues, as well as in this case the report of Mr. Gough. In these circumstances the decision arrived at was not in my view one reached in accordance with law.
74. There is one further matter that I feel obliged to comment upon. On day four of this case it emerged, without warning, that the City Council had conducted its own internal inquiry into this matter in 1995. Whilst it is not necessary to outline in detail the scope of that inquiry, it is immediately evident from the documentation gathered, and later discovered, that the same was quite extensive and far reaching. Virtually every player who was involved in this process was interviewed, on occasions twice or more and was asked a series of questions which had previously been prepared by management. None of this documentation was disclosed notwithstanding appropriate orders for discovery and ample time and opportunity to comply with such orders. It is impossible to appreciate why the same were not disclosed. Any argument on relevancy is not sustainable and even if some cloak of privilege could be claimed, the correct procedure for so doing was never adhered to. I am still at a loss to fully understand why.
Having heard evidence on this issue however I am prepared to accept that any oversight which may have occurred in the Law Department, was purely that, with there being no intention directly or indirectly to avoid its responsibility to the plaintiff, to justice or to this court.
75. Finally the question remains as to what appropriate orders should be made in response to the above judgment. In this context I note that Counsel on behalf of the plaintiff indicated to this Court that a valid planning permission was required and that a reference back for that purpose may be appropriate. I therefore do not understand that a default situation is being contended for. Accordingly I propose to receive further submissions from the parties on such orders and in this context would draw their attention to the decision of Smyth J., in Illium Properties v. An Bord Pleanála and Dublin City Council, High Court, Unreported, 16th December, 2004.
Carman’s Hall Community Interest Group v Dublin City Council [2017] IEHC 544
JUDGMENT of Mr. Justice Binchy delivered on the 11th day of October, 2017
1. By these proceedings the applicants seek an Order of certiorari by way of an application for judicial review quashing a decision and Order of the Deputy Chief Executive of the respondent dated 28th October, 2016 (the “Order”). The Order purports to authorise a change of use and the refurbishment of inter alia, a premises formerly used as a Parish Centre and known as St. Nicholas of Myra and situated at Carman’s Hall, Dublin 8 (“the Premises”), and in the ownership of the Dublin Archdiocese, in order to provide accommodation for persons experiencing homelessness. It was made by Mr. Jim Keogan, then Assistant Chief Executive of the respondent, and acting pursuant to powers delegated to him by the Chief Executive, Mr. Owen Keegan and is in the following terms:-
“As the officer with the delegated responsibility for planning and development in Dublin City Council’s administrative area I endorse the recommendation of the Senior Executive Officer above requiring that a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street, be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is an exempted development having regard to the provision of the Planning and Development Act 2000, s. 179(6)(b) which states inter alia development by a local authority is exempt if the development “is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action”.”
2. It is important to stress that these proceedings are concerned only with the Premises, and not with the other premises at Ellis Quay and Little Britain Street/Green Street referred to in the Order.
3. As is apparent from the Order, it was based upon the recommendation of a Senior Executive Officer in the housing and residential department of the respondent, dated 28th October, 2016. That officer is Ms. Máire Igoe, and in her recommendation, Ms. Igoe states that the respondent is unable:-
“To meet the needs of a growing cohort of vulnerable adults and families presenting to Dublin City Council’s Homeless Services due to the unavailability of suitable accommodation in the Dublin region. The current high levels of presentations of homeless services as well as the growing number of individuals and families being encountered on the streets indicates that this situation is going to get worse during the winter of 2016 and beyond. In addition to adults experiencing homelessness the situation for families is precarious as the numbers of families in need of emergency accommodation is outstripping the available contracted provision in place.
The rough sleeper count in Spring 2016 showed at least 102 people sleeping rough in the Dublin region. In July 2016 alone 97 new families presented as homeless bringing the total number of families in emergency accommodation to 993 with 2,020 children. All the Dublin local authorities are experiencing a similar crisis in their administrative areas.
Due to the large number of families requiring emergency accommodation which had resulted from a range of factors including the loss of private rental accommodation and family breakdown the Dublin Regional Homeless Executive (on behalf of the four Dublin LA’s) has had no choice but to use commercial hotels settings as a form of temporary shelter as no alternative housing options have been available. The use of commercial hotels in this way is an unstable and unsuitable form of accommodation for vulnerable families.
The availability of hotel rooms for this use is now at saturation point particularly due to the upturn in the Dublin tourism sector. This is a critical situation which requires an urgent emergency response in order to provide the accommodation necessary to prevent fatalities and/or serious harm to adults and children at serious risk of rough sleeping in Dublin during 2016/2017.
Dublin City Council’s Housing and Residential Department are seeking approval to take immediate humanitarian action to open the homelessness facilities as set out below in order to ensure beds are available for all persons who are at risk of rough sleeping.
A proposal to change the use of the existing buildings outlined below on a temporary basis has been put forward as part of the emergency response. The provision of these emergency accommodation units is temporary in nature pending a more sustainable long term option being provided for this vulnerable group through the provision of supported long term accommodation or permanent housing options (social housing/private rented (HAP)).”
4. Ms. Igoe then concludes with a recommendation as follows:-
“Given the current lack of suitable accommodation to cater for persons experiencing homelessness in the Dublin area as outlined above and given that the situation is considered by both the executive and elected members of Dublin City Council to be of a level that is considered an emergency with immediate action required, I recommend that in order to alleviate this unacceptable situation a programme of conversion involving the change of use and refurbishment of the three developments referred to above at Francis Street, Ellis Quay and Little Britain Street/Green Street be commenced to provide accommodation for persons experiencing homelessness. I am satisfied that the provision of accommodation for persons experiencing homelessness in this instance is exempted development having regard to the provisions of the Planning and Development Act, 2000 s. 179(6)(b) which states inter alia development by a local authority is exempt if the development is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action.”
Background
5. In the statement of grounds, the first applicant is described as an association comprising local residents of the Liberties area of Dublin 8, being persons directly affected by and concerned with the proposed development of the Premises. The second applicant is described as a Residents Association comprising exclusively residents of Michael Mallin House, Vicar Street and Carman’s Hall, the combined buildings of which are home to 164 residents including 46 children under the age of 16 years. The third applicant is described as a youth and community worker in the employment of the South West Inner City Network under the aegis of the Department of Social Protection, and who works in the immediate local area of the Premises. In this role the third applicant was formerly based at St. Nicholas’s of Myra Parish Community Centre, Carman’s Hall, Dublin 8, i.e. the Premises, until 8th November, 2013. She was awarded the 2016 Dublin City Council Good Citizen Award for her work in the children and youth category.
6. Issues have been raised by the respondent in the proceedings in relation to the legal capacity of the first and second named applicants. I will address those issues in due course, but suffice to say at this juncture that since no issue arises in relation to the capacity of the third named applicant, there can be no obstacle to the bringing of these proceedings by her on these grounds.
7. The proceedings are grounded upon three affidavits: an affidavit of Ruth Campbell sworn 4th December, 2016 on behalf of the second applicant; an affidavit of the third named applicant sworn on the same date; and an affidavit of a Raymond O’Malley, civil engineer and town planner dated 30th November, 2016. Ms. Campbell describes herself as a community volunteer and chairperson of the Michael Mallin House Residents Association. She says that Michael Mallin House is a local authority flat complex made up of two buildings, one of which is within one hundred metres of the Premises and the other of which is just another few metres away. She says that she has lived in Michael Mallin House for twenty-five years with her family.
8. Ms. Campbell states that the Premises was, for a period of twenty-five years until it closed in November 2013, used as a Community Centre. She says that on any given day as many as 450 adults and children made use of the Premises for a wide range of purposes, including a breakfast club to feed disadvantaged children, a homework club, the provision of meals for senior citizens, evening classes, adult training on drug awareness, community development, the local community policing forum and other general uses by associations and organisations. The Premises was closed owing to accessibility issues and because it was not compliant with fire regulations. Ever since then, the residents in the area have campaigned to have the Premises reopened and have sought funding from the relevant authorities to attempt to bring the Premises up to the applicable regulatory standards.
9. Ms. Campbell describes in some detail the importance of the Premises when it was open for use as a Community Centre, on account of the lack of facilities in the Liberties, for children in particular. Since its closure, community activities have been severely restricted because there is no other community facility in the area. In her grounding affidavit, Ms. O’Connor describes the closure of the Premises in 2013 as being a “devastating blow” for the local community because people have nowhere local to come together to run events, as in the past. Both Ms. Campbell and Ms. O’Connor aver that they and others had been seeking assistance from local (elected) representatives in Dublin City Council in order to secure the necessary resources to have the Premises reopened for the benefit of the community and that as recently as October, 2016, Councillor Críona Ní Dhálaigh was in correspondence with both the Archdiocese and the Parish Priest, Fr. Martin Dolan in this regard. Ms Campbell refers to an email to Cllr. Ní Dhálaigh of 13th October, 2016 in which Fr. Dolan stated that “the Parish has been working very hard for the last almost three years to get the Parish Centre open again. In the near future I will be in touch with you again to discuss the progress.”
10. Ms. O’Connor, the third named applicant, avers in her grounding affidavit that on 24th October, 2016 she was passing the Premises when she noticed a large team of contractors working at the building. Over the course of the day, she says, rumours circulated that the Premises was to be converted for use as a hostel with 65 bed spaces for men. She contacted Dublin City councillors, but they had no knowledge of the purpose of the works. Following enquiries however, it was established that the respondent had indeed taken the decision to convert the Premises for use as accommodation for homeless persons. It transpired that the respondent had made contact with the parish authorities in May, 2016 to explore the possible temporary use of the Premises as a homeless shelter. The respondent made a presentation to the parish authorities in May 2016, presenting its model for the provision of services to the homeless, contained in a document entitled Pathway to Home ,and explaining how it (the respondent) operates to provide emergency accommodation and support services for homeless persons and how quality standards and good neighbourhood relations are a prerequisite for the commissioning and establishment of new facilities. The respondent’s proposals were received positively by the parish authorities, and the respondent prepared a draft lease which issued to the parish authorities on 11th August, 2016. Following discussions, agreement in principle was reached in late August, 2016. All of this information was given in a reply dated 30th November, 2016 given by the respondent (through a Mr. Daithi Downey, Deputy Director and Head of Policy and Services Delivery, Dublin Regional Homeless Executive (“DRHE”) to a query put by Councillor Ní Dhálaigh. The DRHE is a shared service operating under the aegis of the respondent, as lead statutory authority in the Dublin region, in respect of the co-ordination of responses to homelessness. In this reply, Mr. Downey (who also swore affidavits in these proceedings) states that the formal lease itself was signed on 28th October, 2016. However, in his second affidavit of 14th December, 2016 Mr. Downey says that the lease was signed on 28th September, 2016. No copy of the lease itself was exhibited by the respondent in the proceedings.
11. The information given to Councillor Ní Dhálaigh on 30th November, 2016 may be contrasted with a response to a motion of Councillor Ni Dhálaigh which she tabled for a meeting of the elected representatives of the respondent on 3rd October, 2016. At that time Councillor Ní Dhálaigh was asking the respondent to facilitate a meeting with the Dublin Archdiocese with a view to trying to progress the reopening of the Premises as a Community Centre. In his reply, Mr. Brendan Kenny, Assistant Chief Executive of the respondent stated that:-
“Officials did meet with the Dublin Diocese on a number of occasions following the closure of this premises a couple of years ago, with a view to the possibility of the Diocese handing it over to Dublin City Council for general community use. Agreement to such a handover was not achieved and this (vacant) premises remains in the ownership of the Dublin Diocese”.
12. On 11th November 2016, Ms. O’Connor wrote to the Chief Executive of the respondent. This is a lengthy letter in which Ms. O’Connor explains in some detail the effect of the closure of the Premises as a Community Centre, and also sets out her concerns in relation to the provision of accommodation for homeless persons at the Premises. While in this letter Ms. O’Connor expresses concerns to which she also deposes in her affidavits in these proceedings, nonetheless it is of some assistance to identify those concerns as expressed in this letter, at this juncture:-
“The proposed hostel is in the very same building as the community crèche which cares for over 100 infants from the local area on a daily basis. The crèche is there 20 years and has only just had its lease renewed for another five years, in October 2016. The residents of the immediate area depend on the crèche and are very concerned for their children. The crèche used to share with the Community Centre, until the Church forced it to shut down in November 2013. We have been campaigning ever since to have the Centre reopened. The hostel will now share the ground floor with the crèche and the hostel windows directly overlook the children’s play yard from the first floor. Both the children and the hostel users will be coming and going from the same building at the same time in the mornings and evenings. They have different access doors but it is still the same building. It is well known that many inner-city hostel users have drug and alcohol addiction problems. It is clear that many of the young children will pass the hostel users every single day. From experience, we expect anti-social groups congregating in the immediate area, the surrounding streets and laneways engaging in drug and alcohol abuse. This will bring safety concerns for residents and create a danger to children from used needles, drug paraphernalia and broken alcohol bottles. We cannot understand why the Council is seeking to operate a hostel for the homeless in the very same building as a crèche, and also just feet from the front doors of long established residences of houses and flats in Carmel’s Hall and of Michael Mallin House.
We cannot understand why the Council is concentrating all of its homelessness services in the same small area in and around the Liberties. There are already over 666 homeless shelter beds within a short distance of this location but there are very few places in other areas of Dublin City. We cannot understand why the Council has closed the nearby Brú Aimsir hostel on Thomas Street and spent money opening another one in the St. Nicholas of Myra Centre. The Council is creating its own problem by closing beds in one location and using it to justify opening yet another hostel.”
Ms. O’Connor then continues in this letter to complain about the failure of the Council to consult with the local community about the development or to provide any information in relation to the same.
13. The Chief Executive replied to Ms. O’Connor’s letter, by letter of 14th November, 2016. Since this letter sets out the respondent’s position as well as any other document in these proceedings, it is worth quoting from it extensively. In relation to the concerns raised by Ms. O’Connor he says the following:-
• “There is an urgent need to provide emergency accommodation for the 150 or so individuals, who are currently sleeping rough on the city’s streets, in advance of the winter period.
• In addition to the need to cater for these individuals the Brú Aimsir temporary hostel, which was opened in October 2015, has to close early in 2017. This building is owned by the Digital Hub Development Agency and was only leased to the Council for the 2015/2016 winter period. The lease was extended to allow Brú Aimsir to continue in use beyond April 2016 but the City Council must vacate the building early in 2017 to facilitate planned redevelopment of the site.
• A total of three new temporary hostels are being developed to provide additional emergency accommodation and to allow for the closure of Brú Aimsir. Their [sic] are located at Carmel’s Hall, at the former Bargain Town premises at 7-9 Ellis Quay, Dublin 7 and at a former warehouse premises at 13-17 Little Britain Street, Dublin 7. The existing users of Brú Aimsir will probably be dispersed between the three new facilities.
• The issue of the concentration of emergency accommodation in the Francis Street area of the city should be seen in the context of the planned closure of Brú Aimsir early in 2017.
• Given the emergency situation that exists in relation to homeless persons sleeping rough in the city and the urgent need to provide additional accommodation it was considered appropriate and necessary to use the emergency planning powers of the Chief Executive.
• I accept that the failure to consult with the local community in relation to the proposed development at Carman’s Hall is a matter of considerable annoyance and indeed anger to some members of the community which is both understandable and unfortunate. At the same time, it would have been disingenuous of the Council to engage in local consultation in relation to the Carman’s Hall development when the reality was that once the lease was signed the City Council felt it had no option but to proceed with the proposed development given the scale of the homeless emergency it is seeking to deal with.
• I do not regard the Carman’s Hall premises as an unsuitable location for emergency homeless hostel. I accept however that the management regime in place must have due regard to the legitimate concerns of the local community. The City Council is prepared to facilitate a meeting/meetings between the hostel operator and the local community in an effort to address matters of concern to the local community.
• The facility of Carman’s Hall is being developed as a temporary homeless hostel. With the expected recovery in the housing market the Council is confident that it will be able to source suitable units of accommodation for homeless individuals, primarily in the private rented sector which with appropriate supports will provide suitable and sustainable accommodation for homeless individuals and allow the Council to close temporary hostels. At this stage however it is impossible to say for certain when this will happen. However, I would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Carman’s Hall facility beyond the 2017/2018 winter period.
• While Carman’s Hall is not in the ownership of the City Council, we are prepared to engage with the local community and the Archdiocese of Dublin in relation to the use of the facility once its use as a temporary homeless hostel ceases.
• Finally, the Council is not prepared to defer the opening of the Carman’s Hall facility. However, it is prepared to engage with the local community in relation to its day to day management in advance of the opening and to provide whatever additional information you require.”
14. Following upon receipt of the letter from the Chief Executive of 14th November, 2016, the applicants brought these proceedings. By order of 5th December, 2016 the applicants were given leave to apply by way of judicial review for the relief set forth at paragraph (d) of the statement of grounds, on the grounds set forth in paragraph (e) thereof. On the same date, Humphreys J. placed a stay on the Order until 24th January, 2017. However, upon application of the respondent, the stay was vacated by Noonan J. on 16th December, 2016 following upon which the Premises was immediately put into use for the provision of accommodation of homeless persons. The Premises accommodates 65 persons.
The Reliefs Sought
15. The applicants seek the following reliefs:-
(1) An Order by way of certiorari quashing the Order insofar as it relates to the Premises only;
(2) A declaration that the Order is null and void, being ultra vires the powers of the respondent, by reason of the respondent’s failure to comply inter alia with s. 178(2) of the Planning and Development Acts 2000-2016 and Part VIII of the Planning and Development Regulations 2001, as amended; and
(3) A declaration that authorisation of the proposed change of use and refurbishment works of the Premises comprises a material contravention of the Dublin City Development Plan 2016-2022; and
(4) A declaration that the Order is ultra vires and/or is invalid and of no legal effect; and/or
(5) A declaration that the Order is so irrational and/or unreasonable that it has to be unlawful and/or invalid; and
(6) A declaration that by reason of the manner in which the respondent brought forth the authorisation to proceed with the proposed development the subject of the decision impugned in the within proceedings, the applicants have been denied fair procedures and natural and constitutional justice.
16. The applicants also seek other reliefs not relevant for present purposes. The grounds upon which the reliefs are sought are as follows:-
(i) The proposed development of the Premises is a material contravention of the current Dublin City Development Plan 2016-2022.
(a) It is pleaded that the respondent failed to have regard to the requirements of s. 5.5.11, Policy QH30 and s. 16.12 of the respondent’s development plan, 2016-2022, (“the Second Development Plan”). The development of the premises should not have been authorised without an applicant for permission identifying the mandatory, specific and detailed requirements of Policy QH30 thereof. It is pleaded that there are already five existing institutional accommodation services located within 500m of the Premises and an additional seven separate social support services within the same radius. This is contrary to Policy QH30 and s. 16.12 of the Second Development Plan. It is claimed that the addition of the proposed development will comprise an undue concentration of services within the immediate area, thereby undermining the sustainability of the neighbourhood, contrary to s. 5.5.11 of the Second Development Plan. It is pleaded that neither the Order nor the recommendation of Ms. Igoe pursuant to which it was made identified the catchment area which the Premises is intended to serve and does not contain any statement regarding the management of the facility.
(b) It is also claimed that the respondent has erred in law as identifying an emergency as justifying the authorisation of a material contravention of the Second Development Plan.
(ii) The proposed development is a material contravention of the previous Dublin City Development Plan 2011-2017.
It is pleaded that the decision purportedly made by the Order on 28th October 2016 was in fact made long before the coming into effect of the Second Development Plan on 21st October 2016, and constitutes a material contravention of the respondent’s development plan 2011-2017, (“the First Development Plan”). The grounds relied upon by the applicant in relation to material contravention of the Second Development Plan are also relied upon in relation to material contravention of the First Development Plan
(iii) The Order retrospectively approves an earlier decision and works.
It is pleaded that the order purported to authorise works which had been planned and commenced at an earlier date, and in any case no later than 24th October 2016 and that accordingly the Order is ultra vires because it cannot retrospectively authorise works.
(iv) The Order is ultra vires/invalid by reason of it lacking the necessary temporal certainty required;
It is pleaded that the Order is invalid because :
(a) It fails to provide any detail as to the duration of the change of use purported to be authorised, and,
(b) It authorises a change of use which is of permanent effect and is irreversible save by way of further permission or authorisation, thereby leaving the respondent at large to continue the change of use indefinitely. It is claimed that that this is ultra vires the power of the respondent pursuant to s. 179(6) which envisages the use of such powers on a temporary basis only
(v) That there has been a denial of fair procedures in that the respondent wilfully withheld information from the public concerned, and the applicants in particular;
It is claimed that the applicants, as persons directly affected by the proposals, had an entitlement to be consulted by the respondent in connection with the same and to make submissions to the respondent in regard thereto. It is pleaded that the respondent denied the applicants their rights of public participation and accordingly denied the applicants fair procedures as well as natural and constitutional justice. It is also pleaded that the respondent wilfully and unlawfully withheld all information concerning the project’s proposals. The applicants claim that the respondent had a duty to advance its proposals for the development of the Premises by way of Part VIII of the Regulations
(vi) That the decision is so irrational as to be unreasonable.
The applicants claim there is already a proliferation of institutional accommodation and support services within the immediate area of the Premises and that the addition of a further 65 bed spaces is disproportionate and is so irrational as to be unreasonable.
17. The applicants claim that the recommendation of Ms. Igoe underpinning the Order does not evidence an emergency. While the recommendation repeatedly refers to a shortage of family accommodation, the proposed development envisages only the provision of single bed spaces. It is also pleaded that there is an insufficiency of information supplied in the recommendation of Ms. Igoe such as to justify the emergency asserted by the respondent. It is claimed that the Order relies upon out of date data so as to identify the precise and immediate nature of the alleged emergency.
18. It is further pleaded that if there is an emergency, it is one that has arisen through the failure of the respondent to effect a sufficient response to a longstanding obligation to provide housing, and in particular housing for families in its administrative area, within a reasonable period of time. The applicants claim that the respondent has failed to implement its own Rapid Build Housing programme which was authorised in November, 2015.
Statement of Opposition
19. The respondent delivered its statement of opposition on 13th December, 2016. All allegations contained in the statement of grounds are denied by the respondent in its statement of opposition. It is denied that there has been any contravention of either the First Development Plan or the Second Development Plan. It is pleaded that all local authority development is exempted development by reason of s. 4(1)(a) of the Act of 2000 and it is further pleaded that Part VIII of the Planning and Development Regulations 2001 (as amended) (the “Regulations”) have no application in circumstances where an emergency situation was deemed by the respondent to exist, and s. 179(6)(b) of the Act 2000 therefore applied. There was therefore no “application” to which policy QH30 of the Second Development Plan would apply.
20. The respondent pleads that the question of whether a proposal to provide or extend temporary homeless accommodation or support services results in an undue concentration of such uses or undermines the existing local economy, resident community or regeneration of an area is a matter of planning assessment and/or discretion of the respondent.
21. It is denied that there are five existing institutional accommodation services within 500m of the development as alleged by the applicants; the respondent states that there are only three such accommodation places within 500m of the Premises. The respondent pleads that the population within 500m of the Premises is just over 11,000 and pleads that the provision of a 65 bed homeless centre in addition to the existing 83 beds cannot be considered as an undue concentration in a catchment area of that population. The respondent also denies that there are seven separate social services within a 500m radius of the Premises, but pleads that even if there are, this is not contrary to Policy QH30 or contrary to the development standards specified in s. 16.2 of the Second Development Plan.
22. Moreover, the respondent pleads that the development is in accordance with its obligations under the Housing Acts, 1988 to 2009, with government policy for a housing-led solution to long term homelessness and the Second Development Plan itself. The respondent specifically refers to and relies upon the following sections of the Second Development Plan:-
(i) s.11.4.2 which provides :“The city council and other statutory agencies are obliged to provide appropriate accommodation and to work together to improve the range and quality of services available for homeless persons”.
(ii) Policy QH28 which provides:-
“It is the policy of Dublin City Council to support the implementation of the homeless action plan for Dublin”
(iii) Policy QH29 which provides:-
“To support the implementation of the homeless action plan framework for Dublin and support related initiatives to address homelessness.”
23. The respondent pleads that the development of the Premises is in accordance with the zoning of the lands concerned. The respondent pleads that the Second Development Plan envisages that there will be a need for an additional 2,500 residential units in the Liberties area over the life of the plan, and it is further envisaged that the homeless crisis will be eliminated through the provision of the required number of residential units across the city over the life of the development plan i.e. by the year 2022. It is pleaded that in the interim, the provision of 65 emergency bed spaces at the Premises in the context of the provision of 2,500 residential units in the Liberties area, over the next six years, and 29,500 citywide, cannot be considered to be a material contravention of the Second Development Plan.
24. It is pleaded that the First Development Plan has no bearing upon these proceedings because the Order was not made by the respondent until after the date the Second Development Plan came into effect. The respondent contends that the entry into a lease of the Premises by the respondent with the Archdiocese prior to the date of the Order did not and could not authorise the development of the Premises. The respondent denies that any works other than scoping works were carried out at the Premises prior to the date of the Order, but pleads that even if there were such works, this would not invalidate the Order.
25. It is further denied that the temporal scope of the Order is vague or uncertain in that the Order states that the change of use is temporary in nature pending a more sustainable long term option being provided through the provision of long-term accommodation or permanent housing options. It is pleaded that the temporary nature of the use of the Premises is confirmed by the fact that the lease is for a five year period with a break clause after three years. It is also pleaded that the respondent has waived any entitlement to renew the lease and that the respondent in a letter of 14th November, 2016 to the third-named applicant has stated that the respondent would be prepared to give a commitment to consult with the local community before any decision is made to extend the use of the Premises beyond the 2017/2018 winter period.
26. It is denied that the Order authorises a change of use which is permanent and irreversible. It is denied that the respondent was under any obligation to consult with the applicants or the public generally in circumstances where the proposal was considered by the Assistant Chief Executive of the respondent to be necessary to deal with an emergency within the meaning of s. 179(6)(b) of the Act of 2000. It is pleaded that the plea on the part of the applicants of a denial of fair procedures is misconceived in circumstances where there is no procedure or process to which the applicants were a party. The respondent denies that there was any wilful withholding of information as alleged by the applicants or at all. It is pleaded that there is no legal basis for participation by the applicants in the decision of the respondents to make the Order.
27. The respondent denies that there is a proliferation of institutional accommodation and/or social support services within the immediate area of the Premises, and pleads that there is in fact a substantial shortage of homeless accommodation in the area and in the functional area of the respondent in general. It is therefore denied that the provision of 65 bed spaces could be considered to be disproportionate and/or unreasonable and/or irrational. It is pleaded that at present, and for the period since the previous expansion in capacity in Quarter 4 of 2015, all available temporary emergency accommodation for adults in Dublin is fully occupied and in regular use.
28. The respondent denies that the emergency has arisen through any failure on the part of the respondent to effect an efficient response to the problem of homelessness over a reasonable period of time; in the alternative, the respondent pleads that even if this is the case it is irrelevant to the requirement to take emergency action within the meaning of s. 176(6)(b) of the Act of 2000.
The Affidavits
29. As I mentioned at the outset, the proceedings are grounded upon the affidavits of Ms. Campbell, Ms. O’Connor and Mr. O’Malley. This gave rise to replying affidavits from Mr. Downey, Mr. John O’Hara, city planning officer with the respondent, Mr. Jim Keoghan, former assistant Chief Executive of the respondent, who made the Order, and Mr. Colm Moroney, administrative officer of the respondent and manager of the central placement service with the Dublin Regional Homeless Executive. These affidavits in turn gave rise to further replying affidavits from Ms. Campbell, Ms. O’Connor and Mr. O’Malley which in resulted in further exchanges of affidavits on behalf of each of the parties. In total, some seventeen affidavits were sworn on behalf of the parties in the proceedings.
30. In their grounding affidavits, each of Ms. Campbell and Ms. O’Connor described (as I have set out above) the effects of the closure of the Premises as a community centre in 2013, and the efforts that have been made to have it reopened as such. It is clear from these affidavits that the Premises had served a very useful purpose as a community centre until its closure. That is not disputed by the respondent, but nor is it an issue in the proceedings.
31. In their grounding affidavits, Ms. Campbell and Ms. O’Connor express their concerns that the use of the Premises as a 65 bed hostel for homeless persons will have multiple negative impacts which will be permanent because the Order is of no fixed duration. They each express concerns that such use of the Premises will give rise to increased problems of anti-social behaviour, as well as alcohol and drug abuse in the streets surrounding the Premises, which children traverse on their way to and from school. They say that there are already twelve homeless and social service facilities within 500m of the Premises and many more again within 1km, so there is already an undue concentration of such services in the area. Accordingly, they opine that the proposed change of use of the Premises is contrary to the Development Plan. They also complain about what they describe as the failure of the respondent to consult with the local community before embarking upon this project. They say that it is clear that the respondent knew that the project would attract huge local opposition, and that this is acknowledged by the Chief Executive of the respondent in his letter to Ms. O’Connor of 14th November, 2016. They also claim that since the respondent was exploring the use of the Premises for use as a hostel for the homeless as far back as May 2016, that the emergency relied upon by the respondent was neither sudden nor immediate, and that the respondent would have had time to go through the procedure required by Part VIII of the Regulations.
32. It should be observed that the concerns expressed by Ms Campbell and Ms. O’Connor as regards the impact of the development on the local community drew a sharp response from the respondent in an affidavit sworn by Mr. Daithí Downey dated 9th December, 2016. In his affidavit, Mr. Downey states that the affidavits of Ms. Campbell and Ms. O’Connor are “replete with exaggerated, ill-informed and prejudicial views of homeless persons”, views which the respondent rejects. Mr. Downey avers that the Premises will be serviced and maintained by the Dublin Simon Community and the Salvation Army through experienced and trained service providers who have detailed policies and protocols in place to ensure that there will not be disruption to the neighbourhood. He further avers that the lease of the Premises to the respondent requires the respondent to provide appropriate staffing resources to ensure the effective day to day management of the Premises and the respondent must comply with the ethos of the parish in its dealings with the service users and the community.
33. This in turn gave rise to further replying affidavits from Ms. Campbell and Ms. O’Connor. Ms. Campbell characterises Mr. Downey’s comments as being pejorative and offensive. She says that she is acutely aware of the challenges faced by those that are homeless, having been homeless herself during three different stages of her life. Moreover, she says she works closely with people who were formerly homeless to help them establish themselves and face their challenges. She says there is nothing exaggerated about the concerns expressed in her grounding affidavit, and that these are based on real life experiences. In her second affidavit, Ms. O’Connor also rejects Mr. Downey’s remarks and says that she too is very familiar with the problems experienced by those who are homeless, from her work in the community, for which she was awarded in 2016 the Dublin City Council Good Citizen Award. I think it important to record now that I am absolutely satisfied that the applicants bring these proceedings in good faith, and with the best of intentions for the community in which they live and serve, and that in doing so they are in no way motivated or influenced by any misguided prejudice against those misfortunate enough to be homeless.
34. In an affidavit sworn on 14th December, 2016 specifically to address the remarks of Ms Campbell and Ms. O’Connor in this regard, Mr. Downey acknowledged the contribution of Ms. Campbell and Ms. O’Connor to the community and in particular on behalf of persons experiencing homelessness. But he does not accept that the theories as identified by them in their affidavits are well founded, because the service that is to be provided at the Premises will be of the highest standard for the reasons set out already above. In both this affidavit and his previous affidavit, Mr. Downey refers to the respondents’ model of homeless services as set out in “Pathway to Home”, which I referred to earlier.. He says that a particular focus of this policy is to tackle the most significant risky and harmful homeless living situation i.e. “rough sleeping” and “street homelessness” which arise when a person does not avail of emergency accommodation and has no other shelter option available.
35. A considerable body of the affidavits exchanged between the parties is taken up with argument about the existing facilities for homeless in the vicinity of the Premises. It is perhaps somewhat surprising that there should be disagreement on what one would imagine would be a straightforward matter of fact. The respondent acknowledges that there are three facilities within a 500m radius of the Premises providing accommodation for homeless namely Viking Lodge, Back Lane Hostel and the Caretaker Hostel. However, the applicants contend that there are an additional five facilities namely the Iveagh Hostel, a Focus Ireland Hostel at John’s Lane West (but which the applicants acknowledge is closed and is now being redeveloped to provide 31 new housing units), the Merchants Quay night café, O’Shea’s Public House and a hostel known as the Backpackers Hostel. The respondents argue that the Iveagh Hostel and O’Shea’s Public House should be disregarded because they have nothing to do with the respondent. They contend that the Merchants Quay night café is a respite service only, and that people do not sleep there. They claim that the Backpackers Hostel is a commercial hostel and that there is no evidence that it is used by persons who are homeless.
36. The applicants identify some five support services that they say are used by homeless persons in the area. These are:-
• Community respite, an addiction rehabilitation service;
• The Bridge Project – a drug recovery education centre;
• Guild of the Little Flower, a facility that targets homeless and older people with food services, laundry services and social activities;
• Casadh, a drug stabilisation and progression service centre for the Dublin 8 community; and
• Castle Street Clinic, a HSE addiction services centre.
The respondent argues however that these services are not exclusively for homeless persons, but are for the benefit of the community at large.
Legislative Provisions and Provisions of Development Plan
37. At this juncture, it is useful to identify both the relevant legislative provisions and those parts of the Development Plan of the respondent relied upon in the proceedings.
Relevant Legislative Provisions
Planning and Developments Acts 2000-2014 (“the Act of 2000”)
38. Section 4 of the Act of 2000 sets out exempted developments for the purpose of the Acts:-
“4. – (1) the following shall be exempted developments for the purposes of this Act –
(aa) development by a local authority in its functional area.”
Section 15(1) of the Act of 2000 states:-
“15-(1) It shall be the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.”
Section 178 contains restrictions on development by certain local authorities and subsection (2) states:-
“178-(2) The council of a city shall not effect any development in the city which contravenes materially the development plan.”
Section 179 is entitled “Local Authority Own Development” and states:-
“(1) (a) The Minister may prescribe a development or a class of development for the purposes of this section where he or she is of the opinion that by reason of the likely size, nature or effect on the surroundings of such a development or class of development there should, in relation to any such development or development belonging to such class of development, be compliance with the provisions of this section and regulations under this section.
(b) Where a local authority that is a planning authority proposes to carry out development or development belonging to a class of development prescribed under para. (a) (hereafter in this section referred to as “proposed development”) it shall in relation to the proposed development comply with this section and any regulations under this section.”
(c) – repealed.
(d) – not relevant.
“(2) The Minister shall make regulations providing for any or all of the following matters:-
(a) the publication by a local authority of any specified notice with respect to proposed development;
(b) requiring local authorities to –
(i) (I) notify prescribed authorities of such proposed development or classes of proposed development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars plan or other information in respect thereof as may be prescribed;
(c) the making available for inspection, by members of the public, of any specified documents, particulars, plans or other information with respect to proposed development;
(d) the making of submissions or observations to a local authority with respect to proposed development.
(3) (a) The manager of a local authority shall, within 8 weeks after the expiration of the period during which submissions or observations with respect to the proposed development may be made, in accordance with regulations under subsection (2), prepare a written report in relation to the proposed development and submit the report to the members of the authority.
(b) A report prepared in accordance with paragraph (a) shall –
(i) describe the nature and extent of the proposed development and the principal features thereof, and shall include an appropriate plan of the development and appropriate map of the relevant area,
(ii) evaluate whether or not the proposed development would be consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the provisions of the development plan and giving the reasons and the considerations for the evaluation,
(iii) list the persons or bodies who made submissions or observations with respect to the proposed development in accordance with the regulations under subsection (2),
(iv) summarise the issues, with respect to the proper planning and sustainable development of the area in which the proposed development would be situated, raised in any such submissions or observations, and give the response of the manager thereto, and
(v) recommend whether or not the proposed development should be proceeded with as proposed, or as varied or modified as recommended in the report, or should not be proceeded with, as the case may be.
(4) (a) The members of a local authority shall, within 6 weeks of the receipt of the report of the manager, consider the proposed development and the report of the manager under subsection (3).
(b) Following the consideration of the manager’s report under paragraph (a), the proposed development may be carried out as recommended in the manager’s report, unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the manager’s report, or decides not to proceed with the development.
(c) For a resolution to have effect under paragraph (b)-
(i) it has to be passed not later than 6 weeks after the receipt of the manager’s report, and
(ii) in the case of a resolution not to proceed with a proposed development, it shall state the reasons for such resolution.
(5) (1) Each Act specified in the first and second columns of Part 1 of Schedule 3 is repealed to the extent specified in the third column of that Part opposite the references in the first and second columns.
(2) Each order specified in the first and second columns of Part 2 of Schedule 3 is revoked to the extent specified in the third column of that Part opposite the references in the first and second columns.
(3) Each Act specified in the first and second columns of Schedule 4 is amended in the manner stated in the third column of that Schedule opposite the references in the first and second columns.
(6) This section shall not apply to proposed development which –
(a) – not relevant,
(b) is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action.”
Planning and Regulations 2001-2015 (“the Regulations”)
39. The first article of Part VIII of the Regulations is article 80,which sets out developments prescribed for the purposes of s. 179 of the Acts of 2000-2014. Article 80(1)(k) prescribes any development other than those specified in paras. (a) to (j) (which are of no application in this case), the estimated cost of which exceeds €126,000.00, not being a development consisting of the laying underground of sewers, mains, pipes or other apparatus.
40. In an affidavit dated 9th December, 2016 sworn on behalf of the respondent, Mr. Downey states that the total cost of works carried out at the Premises to that date is of the order of €1,184,000. Accordingly, the procedures set out in s. 179 of the Act of 2000 and Part VIII of the Regulations would, in the ordinary course of events, apply to the works undertaken by the respondent at the Premises. The remainder of Part VIII of the Regulations sets out in some detail the procedures to be followed by local authorities in developments to which the Regulations apply. It is not necessary to set out those procedures here. However, it can be seen from s. 179(6)(b) that the requirement imposed upon local authorities to comply with s. 179 of the Act of 2001 and any regulations made thereunder does not apply to development which is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action, as is the case in relation to the refurbishment of the Premises by the respondent for the purposes of accommodating persons who are homeless. While the combined effect of s. 4(1)(aa) and s. 179(6)(b) of the Act of 2001 is to exempt any development of the kind described in s. 179(6)(b) from the requirements to obtain planning permission or to go through the procedure prescribed pursuant to s. 179 and Part VIII of the Regulations, that does not entitle a local authority to undertake development in contravention of its own development plan. It is clear from ss. 15 and 178 of the Act of 2000, that a planning authority has both positive and negative obligations as regards the development plan – the first being to take such steps as are within its powers and as may be necessary to secure the objectives of the development plan, and the second being not to effect any development which contravenes materially the development plan. It is common case that a planning authority remains subject to these obligations, notwithstanding that it may be exempt from any procedures to obtain permission for or secure approval under s. 179 of the Act of 2000,for the proposed development.
Relevant Provisions of Development Plan
41. It is pleaded on behalf of the applicants that the development of the Premises by the respondent is a material contravention of both the First and the Second Development Plans. The Second Development Plan came into effect on 21st October, 2016. As it happens however, the provisions of both development plans are almost identical in all material respects as regards these proceedings, save for a footnote in the First Development Plan, which does not appear in the Second Development Plan. For completeness, I set this foot note out in the next paragraph. While it is pleaded in the alternative by the applicants that the respondent is in breach of each plan, nothing turns on which plan is the relevant plan for the purpose of the proceedings. Accordingly, save for the footnote below, I will set out only those provisions of the Second Development Plan as are relevant and, for convenience, I will from this point onwards (save for in the next paragraph) refer to both plans together as “the Development Plan”.
42. The footnote in the First Development Plan referred to above stated:-
“Hostels for the care of people, such as, homeless hostels will not be allowed in areas where there is an over concentration of such facilities such as parts of the north inner city and south-west inner city in Dublin 1, 7 and 8.”
This footnote was not carried forward to the Second Development Plan. I queried counsel for the respondent about this, and in particular inquired if a conscious decision was taken not to carry the footnote forward to the Second Development Plan, or whether or not there was any record of any discussions or consideration of the issue. Following the taking of instructions, counsel for the respondent informed me that there was no indication given as to why the footnote was not carried forward to the Second Development Plan. It appears that from the very first draft of the Second Development Plan, there was no corresponding content in the Second Development Plan.
Section 5.5.11 Homeless Services
43. The City Council and other statutory agencies provide appropriate accommodation and work together to improve the range and quality of services available for homeless persons. An over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. A coordinated approach to the provision and management of these facilities as well as their spread across the City is important.
44. But it is the policy of Dublin City Council:-
QH29 to support the implementation of the Homeless Action Plan Framework for Dublin and support related initiatives to address homelessness.
QH30 to ensure that all proposals to provide or extend temporary homeless accommodation or support services shall be supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. All such applications shall include: a map of all homeless services within a 500m radius of the application site, a statement on the catchment area identifying whether the proposal is to serve local or regional demand; and a statement regarding the management of the service/facility.
16.12 Standards – Institutions/Hostels and Social Support Services
An over-concentration of institutional hostel accommodation, homeless accommodation and social support institutions can potentially undermine the sustainability of a neighbourhood and so there must be an appropriate balance in the further provision of new developments and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum. Accordingly, there shall be an onus on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity, or the regeneration of the area.
All such applications for such uses shall include the following:-
• A map of all homeless and other social support services within a 500m radius of the application site
• A statement on catchment area, i.e. whether a proposal is to serve local or regional demand
• A statement regarding management of the service/facility.
45. As to the zoning of the lands on which the premises are situate, the zoning is categorised as objective Z1 which includes buildings for the health, safety and welfare of the public. It is common case that the use of the Premises for the accommodation of homeless persons would be permitted by the applicable zoning objective.
Discussion and Decision
46. These proceedings are concerned with one of the most pressing and significant social issues facing many societies today. Homelessness has always been an issue for society, but it is perplexing that in an era of unprecedented prosperity (notwithstanding the recent financial crisis), it should continue to present as a problem to any significant degree at all. That this is so is undoubtedly due, at least to a significant degree, to the underlying complexity behind the reasons that give rise to homelessness. The reasons for homelessness are manifold, and this is addressed by Mr. Downey in his second affidavit wherein he avers that the DRHE, having reviewed the records of those presenting as homeless over separate months in 2015 and 2016, identified the key reasons giving rise to homelessness in recent times. These are: service of notices to quit in private tenancies, overcrowding and relationship breakdown. The DRHE identifies that over two thirds of family households presenting as homeless in Dublin did so because of tenure insecurity caused by increased rates of rent inflation and notices of rent increases that were unaffordable. The DRHE has devised a very comprehensive policy to address homelessness in its Pathway to Home strategy. In addition, Development Plan has clear objectives to address homelessness, and policy QH29 specifically states that it is the policy of the respondent to support the homeless action framework for Dublin (which is the plan set out in Pathway to Home).
47. It is apparent from the face of the Order that it was made in order to address what the Assistant Chief Executive considered at the time to be an emergency in the provision of accommodation for the homeless. The affidavits sworn on behalf of the applicants grounding these proceedings do not dispute that there is a crisis or an emergency in the provision of homeless accommodation. However, this is put in issue by the applicants in paragraph (E)(34) of the statement of grounds under the heading “the decision is so irrational as to be unreasonable”, as summarised above. Notwithstanding therefore that the issue is not raised by the applicants in their affidavits, it is necessary for me to address the issue even though, to put it mildly, it can hardly be gainsaid that there was at the time and there remains now a crisis in the Dublin city area in the provision of accommodation for persons who are homeless
48. In his affidavit of 14th December, 2016, Mr. Downey refers to and exhibits the respondent’s Homeless Action Plan Framework for the period 2014-2016, contained in “Pathway to Home”. Mr. Downey says that the primary emphasis of the Pathway to Home strategy is on securing a speedy exit from a homeless living situation to independent living in a tenancy (with support as required). He says that for the period January – September 2016, a total of 1,241 moves to tenancies were provided for homeless households in Dublin. He avers:-
“A particular focus for Pathway to Home services is on tackling the most significantly risky and harmful homeless living situation that manifests in Dublin. This is commonly described as “rough sleeping” and “street homelessness” whereby a person is not availing of emergency accommodation provision and has no other shelter option available. Core to reducing the extent of this living situation is the provision of a sufficient capacity of available emergency accommodation and the quality of its service delivery.”
49. Mr. Downey then goes on to provide some statistics in relation to homelessness in Dublin. He says that in the period between September 2015 and September 2016, the total population in homeless accommodation in Dublin increased from 3,673 persons (comprising 2,330 adults and 1,343 children) to 5,053 persons (comprising 2,988 adults and 2,065 children).
50. Mr. Downey refers to a “rough sleeping count” undertaken by the respondent on the night of 22nd November, 2016 into the morning of 23rd November, 2016 which identified 142 persons sleeping rough. In addition, on that night, 77 persons accessed the Merchant’s Quay Ireland night café, which Mr. Downey says is not a night shelter but provides respite to persons who do not access emergency accommodation. He says that the proposed development of the Premises, coupled with the development of the other facilities at Ellis Quay and Little Britain Street/Green Street, will increase emergency accommodation capacity by 230 bed spaces in Dublin. He says that:-
“The proposed development constitutes immediate humanitarian action to open homeless facilities to ensure beds are available for all persons who are at risk of rough sleeping with the aim of preventing fatalities and/or serious harm.”
51. In an affidavit sworn on 21st December, 2016 Mr. Colum Moroney, Manager of the Central Placement Service with the DRHE, identifies the number of people refused a bed in Dublin city after the allocation of all beds in emergency accommodation facilities during the period between 25th November, 2016 and 15th December, 2016. During this period, there was a total of 502 refusals of accommodation ranging from the lowest number of 9 on 9th December, 2016 to the highest number of 39 on 6th December, 2016. All of the above clearly demonstrates that there was, both on the date of the Order and thereafter a crisis in the provision of emergency accommodation for homeless persons. This was referred to in the recommendation of Ms. Igoe of 28th October, 2016 to the Chief Executive of the respondent.
52. The applicants however argue that the respondent caused or contributed to this emergency by failing to effect its Rapid Build Housing programme in a timely manner. This is addressed by Mr. Downey in his second affidavit, who says that this allegation is factually incorrect, and that the respondent has (as of the date of his affidavit, 14th December, 2016) completed 22 housing units , and a further 130 units were due to be completed and in use by the end of June of this year. In any case I would have to agree with the submission of the respondent about this issue, that even if the respondent is in some way responsible for the emergency, that scarcely makes the resolution of the problem any less urgent.
53. The applicants also advanced another argument under this heading, to the effect that the respondent effectively contrived a situation where there would not be enough time to comply with Part VIII of the Regulations, thereby enabling it to drive the proposal through relying upon the emergency powers conferred upon it by s. 179(6)(b) of the Act of 2000, and avoiding the public consultation process prescribed therein. The applicants argue that the respondent could have completed the Part VIII process and developed the Premises (assuming for the purpose of this argument that the proposal was approved at the end of the Part VIII process) within the same time-frame as it did relying on its emergency powers. However, I think that this is highly unlikely. Realistically, I don’t believe it would have been appropriate for the respondent to commence a Part VIII process before taking a lease of the Premises, or without at least having entered into a written agreement for lease of the Premises with the archdiocese. There was no evidence that such an agreement was entered into, and the evidence established that a draft lease was only prepared in August, 2016 and was thereafter finalised and executed on 28th September, 2016. So the earliest the respondent could have commenced the Part VIII process was 28th September, 2016. I set out above section 179 of the Act of 2000 , and I think it is highly unlikely that there would have been sufficient time available to the respondent both to follow the procedures prescribed by s.179 of the Act of 2000 and Part VIII of the Regulations and thereafter carry out the necessary works to the Premises in order to have it available for use in December, 2016, which was the objective of the respondent.
54. For all of these reasons, I am of the opinion that, at the time of the making of the Order, and for that matter ever since, there was an emergency as regards the availability of accommodation for the homeless, and that the respondent had ample justification for its decision to invoke s. 179(6)(b) of the Act of 2000.
55. Having thus concluded, and before proceeding to address the question as to whether or not the development of the Premises is in material contravention of the Development Plan, I will first address the applicants’ claim that they were entitled to be consulted about the proposed development, as persons affected by the development of the Premises. It is claimed that the failure to consult with the applicants is a denial of their right to fair procedures and to participate in the decision-making process. The applicants rely upon the decision of the Supreme Court in Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1. I cannot accept this argument. There are very specific procedures for consultation and participation in the planning process set out in the Act of 2000. There is one set of procedures where planning applications are concerned, and another where local authority development is concerned, as provided for in Part VIII of the Regulations. No consultation procedure is prescribed for development undertaken by a local authority in cases of emergency pursuant to s. 179(6)(b) of the Act of 2000, and the reason for this is perfectly obvious; a requirement to consult in such circumstances could hamper a local authority in addressing an emergency. The protection that members of the public enjoy in such circumstances is contained in s. 178(2) of the Act of 2000, which prohibits the local authority from giving effect to any development that is in material contravention of the Development Plan. I might add that the circumstances of this case are entirely different to the circumstances that gave rise to the Supreme Court decision in Dellway.
56. Having thus concluded, it is now necessary to address the applicants’ arguments that the development of and change of use of the Premises are in material contravention of the Development Plan. The Development Plan acknowledges that an over-concentration of institutional accommodation can have an undue impact on residential communities and on the inner city in particular. Section 5.5.11, policy QH30 and s. 16.12 of the Development Plan are not inconsistent with the objectives set out elsewhere in the Development Plan to address homelessness. Rather they recognise that there is a need to make sure that such facilities are not overly concentrated in any one area, to the detriment of that area. Policy QH30 makes it clear that there is an obligation on those proposing to provide or extend temporary homeless accommodation to satisfy the respondent (as planning authority) that the proposal will not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. That is the planning objective to which the procedural elements of policy QH30 are directed. The second part of policy QH30 indicates the minimum documentation that must be provided with “all such applications” in order to assist the respondent as planning authority in deciding whether or not the proposal meets this objective. The words “proposals” and “applications” are used interchangeably in policy QH30.
57. Section 16.12 is very similar in its content to policy QH30. It sets out the policy objective of securing an appropriate balance in the further provision of new developments of institutionalised hostel accommodation, homeless support institutions and social support institutions and/or expansion of existing such uses in electoral wards which already accommodate a disproportionate quantum, and then goes on to impose an obligation on all applicants to indicate that any proposal for homeless accommodation or support services will not result in an undue concentration of such uses, nor undermine the existing local economy, the resident community, the residential amenity or the regeneration of an area. It requires applications to include documentation of the same kind that is specified in policy QH30, in order to assist the planning authority in arriving at a determination as to whether or not the proposed development is consistent with the planning objective set out in section 16.12.
58. It is not disputed that the effect of the making of an Order pursuant to s. 179(6)(b) of the Act of 2000 exempts the planning authority from the requirements of s. 179 of the Act of 2000, and Part VIII of the Regulations. Nor is it disputed however that the making of such an order does not entitle a planning authority to effect development that is in material contravention of its development plan, contrary to s. 178(2) of the Act of 2000. It is the applicants’ contention that the development of the Premises by the respondent is in material contravention of the Development Plan by reason of the failure of the respondent to support its proposal for the development of the Premises with information demonstrating that it will not result in an undue concentration of temporary homeless accommodation or support services relating thereto, nor undermine the existing local economy, resident community, or regeneration of an area. The applicants further contend that the development of the Premises for use as a facility for the homeless, coupled with the existing facilities for such purposes in the area, results in an undue concentration of the same contrary to policy QH30 and section 16.12 of the Development Plan. Moreover, the applicants submit that even prior to this development, there was already an undue concentration of such uses within 500m of the Premises, and that the development of additional facility for homeless accommodation at the Premises is such that the materiality of the contravention is beyond dispute.
59. For its part, the respondent denies that there is an undue concentration of homeless accommodation, or support services for the same, in the vicinity of the Premises either before or after the development of the Premises for such purposes. Furthermore, the respondent contends that the reliance by the applicants upon policy QH30 and s. 16.12 of the Development Plan is misplaced, because, in the submission of the respondent, those policies are clearly predicated upon there being either an application for planning permission or a proposal for and consideration of the development pursuant to Part VIII of the Regulations. Since neither arises in this case (by reason of the development being carried out pursuant to the Order declaring an emergency) there was no obligation on the respondent to prepare the documentation that would otherwise require to be prepared pursuant to the policy QH30 or s. 16.12 of the Development Plan.
60. I was referred by counsel to many authorities concerning the principles applicable to the interpretation of a development plan. In the case of Wicklow Heritage Trust Ltd v Wicklow County Council [1998] IEHC 19 McGuinness J., following a review of a number of authorities, identified the following principles as being applicable at p. 35:-
“(1) It is for the Court and not for the planning authority to decide as a matter of law whether a particular development is a material contravention of the local development plan.
(2) A development plan forms an environmental contract between the planning authority and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and further that the Council itself will not effect any development which contravenes the plan materially. In seeking to interpret the objectives set out in a Development Plan the court should ask what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.
(3) The requirements of the planning law must be applied with as much stringency against the local authority as they would against a private developer.
(4) It is necessary for a local authority to include all its objectives in its Plan. If it were otherwise it would mean that the local authority could totally override its own plan.”
61. So how would a reasonable person with no relevant planning expertise interpret policy QH30 and s. 16.12 of the Development Plan? The first part of policy QH30 refers to all “proposals” to provide or extend temporary homeless accommodation or support services for homeless persons. No reference at all is made to planning applications or to the Part VIII procedure of the Regulations. It requires that such proposals are supported by information demonstrating that the proposal would not result in an undue concentration of such uses nor undermine the existing local economy, residential community or regeneration of an area. The second part of policy QH30 then prescribes the documentation to accompany all such “applications”. The words “proposals” and “applications” are used interchangeably, providing fertile ground for argument in these proceedings. Insofar as it has led to confusion, that confusion is, I think, most readily resolved by the reference to the word “all” before “proposals” in the opening part of policy QH30, and subsequently the use of the word “such” before applications, which is clearly intended to refer back to the proposals referred to earlier. The words are also used interchangeably in s. 16.12, but here again it states that “any proposal for homeless accommodation or support services will not result in an undue concentration of such uses…” In my view, a reasonable member of the public, if he or she were to dwell on the issue at all, would probably resolve the issue in his or her own mind by concluding that whatever the background to the proposal, and regardless as to whomever is making the proposal it will be subject to the kind of scrutiny envisaged both in policy QH30 and s. 16.12 of the Development Plan in order to ensure that it meets the objectives of the policies set out therein. Such a person would see the objectives of the policies as paramount, and would, in my view, be highly unlikely to embark upon a consideration of the genesis of the proposal under consideration, because the policy objective of avoiding an undue concentration of such uses must, as a matter of logic, apply to all proposals. It would make no sense if the policy could be avoided, through the use of emergency provisions, by the planning authority itself, with the possible result of an over concentration of such uses.
62. The respondent has also argued that the procedural requirements of policy QH30 and s. 16.12 were never intended to and clearly do not apply to emergency measures, and further argues that since the proposals make it clear that the use of the Premises is temporary only, there is no contravention of the Development Plan. If there were a temporal limitation on the use of the Premises, this argument might carry some weight. A proposal that is limited to a brief period of time is unlikely to have a long-term effect on the neighbourhood. But the respondent has been very careful to avoid such a limitation, and has expended a considerable sum of money on the Premises. No doubt it does not intend to use the Premises for homeless accommodation purposes for ever more, but it does intend to do so indefinitely. The fact that the lease of the Premises to the respondent is for five years only, and that it has waived its statutory entitlement to a new tenancy, does not prevent the respondent from agreeing to terms of a new lease with the archdiocese upon the expiration of the current lease. And in any case, if it is indeed the case that there is already or will be after this development an undue concentration of such uses in the area, the period of five years may be considered long enough to have the adverse consequences contemplated by the Development Plan. That is a planning judgment for the respondent to make, but it has not done so. It can hardly be doubted either that if a third party came to it with the same proposal, the respondent would require that party to commit to a date on which the use of the Premises would cease, if it was otherwise considered likely to give rise to an undue concentration of such uses in the area. It follows therefore that the fact that the period of intended use of the Premises remains open ended defeats any argument that the restrictions set out in policy QH30 and s. 16.12 of the Development Plan do not apply to emergency measures taken by the respondent, simply because the recommendation of Ms. Igoe states that the use of the Premises is to be temporary in nature.
63. It is clear from the recommendation of Ms. Igoe to the Chief Executive of the respondent that no documentation or information of the kind required by policy QH30 or s. 16.12 was prepared by the respondent. Furthermore, it is apparent that prior to the institution of these proceedings, no consideration was given by the respondent at all to the question as to whether or not the proposed development was in compliance with the Development Plan, whether in the context of policy QH30, s. 16.12 or otherwise. The respondent did not therefore consider and form any opinion as to whether the Premises was located in an area where there was already an undue concentration of such services, or, if not, whether the development of the Premises as proposed would give rise to such an undue concentration when taken together with existing facilities. It seems that the respondent addressed this issue for the first time for the purpose of resisting these proceedings. Up to that point, the entire focus of the respondent was to address the urgent need for the provision of accommodation for the homeless.
64. It follows from this that the failure on the part of the respondent to prepare the information and documentation required by policy QH30 and s. 16.12, even though it would only be preparing it for its own consideration, constituted a contravention of the Development Plan. The question that follows from this is whether or not this amounts to a breach of s. 178 (2) of the Act of 2000? It will be recalled that that section states: “The council of a city shall not effect any development in the city which contravenes materially the development plan.”
65. Referring to s. 178(2) of the Act of 2000, counsel for the respondent argued that in considering the section, it is the work itself or the change of use associated with the development that must be considered, and not the decision making process. He submitted that the meaning of the word “effect” in the section is directed to the carrying out of works, or a change of use, and that it is only the actual carrying out of works or a change of use that can give rise to a contravention of a Development Plan, and not the making of a decision to do the same. He referred to the Concise Oxford Dictionary of Current English (eighth ed.) which defines the word “effect” as meaning to “bring about or accomplish, or to “cause to exist or occur”. He submits that in making a decision pursuant to s. 179(6)(b) of the Act of 2000, a local authority is not obliged to have regard to the Development Plan in the decision making process, in the same way that it is expressly obliged to do so (pursuant to s. 34 of the Act of 2000) when considering a planning application. He refers to Simons, Planning and Development Law, 2nd Ed., para. 12-194 in which it is stated that:-
“In most cases in which a statutory discretion is conferred, some indication will be given in the legislation as to the matters which are to inform the exercise of that discretion. Perhaps the most comprehensive scheme is to be found in relation to the planning legislation itself. There, in deciding to grant or refuse planning permission, a planning authority or An Bord Pleanála shall consider the proper planning and sustainable development of the area. In addition, regard is to be had to a number of matters including, for example, the Development Plan”.
It is submitted that since there is no such obligation in the legislation as regards the exercise of powers pursuant to s. 179(6)(b) of the Act of 2000, there is no obligation on the respondent to have regard to the Development Plan when invoking that sub-section. But yet it is accepted by the respondent that the invocation of s. 179(6)(b) of the Act of 2000 does not entitle a local authority to carry out development in breach of s. 178(2) of the Act of 2000.
66. In reply to this argument, counsel for the applicants submitted that the respondent was attempting to separate the decision to undertake works and/or change the use of the Premises from giving effect to that decision. He submitted that the problem with this line of argument is that it would leave the applicants with no remedy; the decision itself could not be challenged for the reasons advanced by the respondent, and the carrying out of works would be exempt from enforcement proceedings – such as an application for injunctive relief under s. 160 of the Act of 2000 – because the carrying out of the works by the respondent would be exempt from planning permission and also from the Part VIII process provided for by the Regulations by reason of the use of s. 179(6)(b). Moreover, he submitted that all of the cases relied upon by the applicants in their submissions were challenges to decisions, which decisions were quashed by the courts because the implementation of those decisions would have constituted a material contravention of the Development Plan. In this case, the decision itself was taken in contravention of the Development Plan and it is submitted that that contravention was a material convention of the Development Plan because policy QH30 and s. 16.12 are very prescriptive and contain specific, mandatory measures to be complied with before any proposal for such development may be considered and approved. The applicants rely upon the decision of Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678 wherein he stated at para. 53:-
“The way in which Development Plans are set out vary. Certain aspects of the plan may have a high level of specificity. For example the zoning attached to certain lands may preclude development of a particular type in express terms. Where development of a particular type is permitted, specific parameters, such as plot ratios, building heights or the like may be specified. In those cases it may not be at all difficult to determine whether what is proposed is in contravention of the plan. In those circumstances it would only remain to exercise a judgment as to the materiality of any such contravention.”
67. As to materiality, it is submitted that the test is that articulated by Barron J. in the case of Roughan v. Clare County Council, (Unreported, High Court, Barron J., 18th December 1996), which test was approved and applied by Clarke J. in Maye. In Maye, Clarke J. stated:-
50. 6.1 So far as materiality is concerned I adopt the test set out by Barron J. in Roughan v. Clare County Council (Unreported, High Court, Barron J., 18th December, 1996) where he stated as follows at pp. 5 to 6 of the unreported judgment:-
“What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there are no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention.”
68. It is submitted on behalf of the applicants that these proceedings have been brought on behalf of a large number of persons living in the local community and that, based on the evidence before the court, it is abundantly clear that local interests might reasonably have been expected to oppose the proposed development. It is further submitted that this is borne out by the letter of the Chief Executive of 14th November, 2016 to the third named applicant wherein he acknowledges that the failure to consult with the local community in relation to the proposed development is a matter of considerable annoyance and indeed anger to some members of the community, which the Chief Executive says is both understandable and unfortunate. For its part, in response to this the respondent argues that the letter of the Chief Executive is no more than an acknowledgement of a shortcoming of courtesy, and falls far short of demonstrating the kind of opposition required to be taken into account when considering materiality.
69. Having considered these arguments, I have come to the conclusion that the failure to apply policy QH30 and s. 16.12 of the Development Plan in considering the proposal to develop and change the use of the Premises is a material contravention of the Development Plan. I have come to this conclusion for several reasons. Firstly, as the applicants argue, it is clear that there is a high degree of specificity prescribed in the Development Plan in relation to the procedures for approval of such developments. It is clear that no effort at all was made to comply with these procedures, and that the entire focus of the respondent, perhaps understandably, was upon addressing the emergency it faced.
70. Secondly, there cannot be any doubt that the purpose lying behind this high degree of specificity was to ensure that the respondent would have available to it sufficient information to decide whether or not the proposed development would give rise to an undue concentration of such facilities in the area, to the detriment of the area. The possibility of such detriment is expressly acknowledged by the Development Plan. The argument that the respondent has no obligation to have regard to the provisions of the Development Plan in making a decision for the purpose of s. 179(6)(b) of the Act of 2000 cannot possibly be correct in light of the very express requirements of policy QH30 and s. 16.12 of the Development Plan and the underlying purpose of that policy and section, and also having regard to the obligation in s. 178(2) of the Act of 2000 not to effect development in material contravention of the Development Plan.
71. Moreover, as a general proposition, Simons opines at para 12-94 that:-
“Before embarking on development, a local authority should therefore address its mind to the question as to whether or not the particular development represents a material contravention of the Development Plan. Presumably no responsible local authority would proceed with the development unless it was satisfied that there was no material contravention involved, and thus it would seem that a decision to proceed with a particular development should, by definition, indicate that the local authority was of the view that there was no material contravention.”
72. The procedural elements of policy QH30 and s. 16.12 do no more than prescribe how the respondent should comply with this obligation. Even if these requirements were not set out in the Development Plan, there would in my view be an obligation on the respondent to consider whether or not the proposed development contravenes the Development Plan, in view of s.178(2) of the Act of 2000. The question as to whether nor not the change of use of the Premises might contribute to or give rise to an undue concentration of such facilities in the area, with the attendant detrimental consequences surmised by the Development Plan, is clearly an important one, and one that is likely to be of significant interest and concern to the residents in the area. As a matter of fact, the development of the Premises has attracted local opposition, which the Chief Executive of the respondent has described as understandable. In any case in my view, the people of the locality have real and substantial grounds for such concerns.
73. It follows from the above that the Order must be quashed, not because the development and change of use of the Premises is in material contravention of the Development Plan (about which I make no finding), but because in failing to comply with the specific procedures for such developments set out in policy QH30 and s. 16.12 of the Development Plan, and in particular in failing to consider and make any decision upon the question as to whether or not the development and change of use of the Premises will contribute to or give rise to an undue concentration of such facilities in the area, or have the detrimental consequences described in policy QH30 and s. 16.12, the respondent, in making the Order, has effected development in material contravention of the development plan.
74. Finally, I should add that it was strongly urged on behalf of the respondent that the decision as to whether or not the development and change of use of the Premises gives rise to an undue concentration of such facilities in the area, such as to have the adverse consequences referred to in policy QH30 and s. 16.12 is a decision that requires planning expertise and as such is a matter for the respondent as planning authority, and not the court, and further that any such decision is only amenable to judicial review in accordance with the well-established principles laid down by the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Counsel for the respondent posed the following rhetorical question – even if the applicants are correct about the number of facilities and support services for homeless in the Carman’s Hall area, how is the court to arrive at any conclusion as to whether or not these constitute an undue concentration in the area? I think that counsel is correct that the question as to what constitutes an undue concentration of such facilities, and the effect that they might have in any given area is a matter requiring planning expertise and calls for planning judgement. The difficulty in this case is that it is clear that the Order was made without any regard to these matters at all. Not only was there no material before the Chief Executive upon which to base a decision that the development of the Premises would not give rise to an undue concentration of such facilities, no decision to this effect was taken at all by the respondent. The change of use of the Premises may or may not constitute a material contravention of the Development Plan, but since there has not been compliance with either policy QH30 or s. 16.12 of the Development Plan, and since the respondent has not otherwise given any consideration to this question, there is no decision to review in this regard. (whether in accordance with the O’Keeffe principles or otherwise).
75. I am very mindful of the potential consequences of this decision, not just for the respondent but for those most vulnerable people who are benefiting from the Premises. I am also mindful of the commitment given by the Chief Executive of the respondent, in his letter to the third named applicant of 14th November, 2016, to consult with the local community before deciding to extend the use of the Premises beyond the 2017/2018 winter period. Accordingly, I will hear counsel in relation to the orders that must flow from this conclusion.
76. Finally, I mentioned earlier that the respondent has raised an issue as to the capacity of the first and second named applicants, specifically it is claimed that as unincorporated associations, they do not have the capacity or legal personality to bring these proceedings. If I had made a decision adverse to the applicants, then it would be necessary for me to address these arguments in order to be able to address the issue of costs. However, since I have found in favour of the applicants, and since the third named applicant is an individual whose entitlement to bring forward the proceedings is in no way challenged (or in doubt), it is unnecessary for me to address the question as to whether or not the first and second named applicants had capacity to bring the proceedings.
Kerry County Council v An Bord Pleanala
Administrative Matter
[2014] IEHC 238 (
Judgment of Mr Justice Peter Charleton delivered on the 11th day of April 2014
1. Kerry County Council seeks to judicially review the decision of An Bord Pleanála to refuse permission for the widening and straightening of the busy road in West Kerry between Tralee and An Daingean. Leave to commence this case was given by Peart J. on the 5th November, 2013. The decision of An Bord Pleanála was given on the 4th September, 2013. The decision and reasons are in the following terms:
At a further meeting held on 4th of September 2013, the Board further considered the report of the inspector and the information and submissions on file, including further information and submissions from Kerry County Council (received by ABP [An Bord Pleanála] on June 18th, 2013) including various reports and documents relating to scheme amendments, landscaping details, cycle route alternatives and road design standards etc.
The board’s [An Bord Pleanála] decided, by majority of 3:2, to refuse to approve the E.I.S. [Environmental Impact Statement], in accordance with the following reasons and considerations.
Reasons and Considerations
The Board acknowledged the demonstrated need to upgrade the N86 Tralee to Dingle route, as identified in the National Secondary Roads Needs Study 2011 (N.R.A.), and accepted the ‘online’ approach to such improvement. However, it is considered that the existing N86 national secondary road is a route of tourism value with an attractive landscape setting, and noted that the proposed width of the road development corridor, would result in a typical overall finished road width of 16 metres, and significantly wider construction corridor width (typically 28m in width and wider in some locations[)]. The Board considered that the road improvement scheme as proposed would represent an excessive intervention into the landscape, not commensurate with the single-carriageway route being delivered, would have an unacceptable detrimental impact on the visual amenities and landscape character of the area and would seriously detract from the tourism value and amenities of the area. The proposed development would therefore be contrary to the proper planning and sustainable development of the area.
Notes:
In making its decision, the Board did not accept all of the inspector’s recommended refusal reasons, as explained below:
The order of priority for the completion of national secondary road schemes is not a matter for the Board to determine, and the justification for the road upgrade as set out by Kerry County Council was accepted by the Board.
In relation to the proposed cycleway (recommended reason no. 2), the Board noted that the development of a long-distance cycling route linking Tralee with Dingle accords with national policy on tourism and transport and would complement the development of Dingle as a ‘Category 1 Cycling Hub Town’ as set out in “A Strategy for the Development of Irish Cycle Tourism, 2007 (Bord Fáilte)[”], albeit that a different route was envisaged in that strategy. The inspector’s concerns about the cycleway – including the lack of connectivity and concerns over its attractiveness for recreation – were noted. The submissions received in June, 2013, from Kerry County Council (including the enclosed submission from the National Trail’s Office and An Bord Fáilte), illustrating the challenges associated with potential alternative routes, were also considered. The Board concluded that the proposed design including cycleways contributed significantly to the width of the proposed road alignment and the associated landscape impacts. The Board was not satisfied that the cycleway justification was sufficient to overcome the landscape concerns as set out in the refusal reason.…
Revised Proposals
In relation to the response by Kerry County Council to the request for a redesign and revised EIS (issued by ABP on 7th of November 2012), notwithstanding the greater detail provided in relation to landscape impacts and proposed mitigation measures, it was not considered that the amendments included in the response addressed the Board’s stated concerns in a satisfactory manner, most notably in relation to the width of the road. Therefore the Board decided that further circulation of this documentation and re-opening of the oral hearing was not necessary and the board proceeded to refuse approval of the scheme for the reasons and considerations set out above.
2. What this case is about emerges naturally from the previous quotation. The road in question is 28 km long. In the middle of the stretch in question there is a 5.2 km piece of road that has been expanded and straightened and it includes a two-way cycleway on one side. About 2 km of the route goes through various villages, including Abhainn an Scáil, while the rest is twisty and very narrow. At times, apparently, it is only 6 metres wide. This kind of road is called a Type 3 Single Carriageway and it is to be constructed upon the existing road; ‘online’ is the term applicable. But, on the application lodged, the road will become much wider and have a cycle lane on each side for most of it, excluding villages, and a hard margin as well for maintenance and pedestrian use. To validly make this application, Kerry County Council had to lodge an environmental impact statement. Under the legislation, the matter went directly to An Bord Pleanála. The Board made a decision to hold an oral hearing on the matter. An inspector then summarised the issues and gave tentative conclusions. Normally, a local planning authority or the Board will make a decision and adopt in whole or in part the reasons for refusal or acceptance in the inspector’s report, or other report. Here the Board adopted and formulated its own reasons as it disagreed with the inspector in part. As to the necessity for having a road improvement scheme at all, everybody agrees that this is a road that badly needs to be seen to. It clearly cannot continue as it is.
3. This was one of those rare cases where An Bord Pleanála used its powers under strategic infrastructure projects legislation, well prior to its final decision, to indicate to Kerry County Council that it would not approve the project but would instead indicate that specified changes might assist in the project going through. Such an indication, in this instance under s.182C(5)(b) of the Planning and Development Act, 2000, as amended, cannot fetter the discretion of a statutory authority. This is made clear in the terms of the legislation which enables such communications where the Board is “provisionally of the view that it would be appropriate to approve the proposed development were certain alterations… to be made”. The letter setting out this provisional view from An Bord Pleanála to Kerry County Council was dated the 7th November, 2012. At its core it suggests the following:
A narrower overall road cross-section should be adopted, omitting the cycleway and reducing the total width of the alignment in so far as possible, including minimising the working strips required on a temporary basis along the edge of the final carriageway and the overall land-take.
Re-examined the alignment to minimise interference with natural landscape features, hedgerows and tree-lines, and minimising other interventions including embankments and excavations that would create scarring of the landscape. The total length of the tree-lined and hedgerow to be lost should be minimised.
Submit more detailed proposals in relation to the re-instatement and landscaping of the completed scheme, with a view to minimising the extent and duration of visual impacts.
4. Essentially, the view expressed was that the road should not be so wide, in order not to be so obtrusive on the landscape. Cars were to be accommodated but not cyclists. They were to share the road with cars, vans, trucks and buses. The idea, perhaps, was that cyclists would be otherwise provided for in a dedicated trail for them, and perhaps pedestrians, running along the Dingle peninsula from Tralee westwards. Of course, An Bord Pleanála has no power to engage in providing for such a scheme. Only Kerry County Council can do that. There is an alternate route in early consideration, perhaps eventually leading to more formal planning. This route has a steeper gradient than the N86. It has been demonstrated in the past that sometimes these schemes take years to come to fulfilment, if they ever do.
Timeline
5. On the 15th December, 2011, a submission was made for confirmation of compulsory purchase orders. An oral hearing took place from the 15th to 17th May, 2012. The report of the inspector was signed on the 13th September, 2012. The letter just quoted was issued on the 7th November, 2012. The response from Kerry County Council was not received until the 17th June, 2013. It is fair to say that what was proposed by the Board was not acceded to and whatever changes were set out did not accord with what had been suggested. On the 4th September, 2013, the Board met to consider the road improvement scheme and refused it. The compulsory purchase order was annulled on the 6th September. An order of An Bord Pleanála was drawn up on the 10th September and then this judicial review commenced by order of Peart J on the 5th November. This hearing took place on the 11th and 12th March, 2014. If matters had to start all over again, it can be predicted that perhaps two more years will be lost before work can start.
Points
6. Counsel for Kerry County Council has helpfully structured the voluminous materials into a number of points that are at the essence of this review. These arguments are:
1. The Board was required to furnish documents publicly within 3 days but the decision of the Board was based on notes taken by one member and then destroyed: this does not constitute statutory compliance and the reasons given are not those of the Board and, further, are inadequate.
2. The Board, in considering the widths required for the cycleways as contributing to overall road width as 28 meters, decided on the basis of incorrect figures since the Board’s decision was based on reckoning that without cycleways the road would be merely 13 metres wide whereas, in fact, drainage etc must be added as to 6 meters on each side, thereby making 25 metres or, at minimum, 24 metres.
3. The Board failed to carry out any appropriate assessment of the information provided by Kerry County Council and failed to make any decision as to whether the proposed alternative trail for cyclists and walkers, the green way alternative, was suitable; thus side-stepping the issue of gradients.
4. That a Board member had done a road trip along the N86, and other routes, reporting to the Board, noting the frequency of cyclists, thus behaving inappropriately and introducing immaterial and prejudicial material.
5. That section 13(5) of the Roads Act, 1993, concerning the approval for roads, required the relevant Minister to consider all road users in considering road schemes for approval, which includes cyclists and pedestrians, and that since this function now is devolved to the Board, there was a total failure to exercise this function; whereby the Board were wrong to confine themselves to a consideration only of proper planning and sustainable development.
7. This case has in common with most other judicial review applications of environmental planning cases that every conceivable point is put in the mix. The result must be that the High Court is required to exercise its discretion as to costs so that only those aspects of the case which succeed bring costs, with the result while those that do not may result in an award of costs the other way. The overall result, as this is an environmental protection case may in any event be no order as to costs. Nonetheless, the Court will consider all these points. Numbers 5, 3 and 2 require to be considered together. Points 1 and 3 will be considered first.
Destroyed notes
8. The first point is insubstantial. The Board had a different view to that of the statutory inspector. This was a proper exercise of its discretion. The matter was debated by the Board at some length, apparently over three hours. The Board came to its conclusion by a vote of 3 to 2. Tasked with noting the reasons, settled through debate, the deputy chairman, Conall Boland took notes, went away, wrote up his jottings and formulated the reasons as they have been quoted. As a matter of policy, notes and papers of members of the Board are destroyed after such meetings. The point made is that this was an inaccurate reconstruction of what was decided or, alternatively, that the note-taker simply made up his own reasons which were only tangentially related to anything which the Board had decided. Conall Boland has given evidence and been cross examined. He emerged as trustworthy and conscientious. Since the Board had previously expressed a view to Kerry County Council on the unsuitability of the road, it was no surprise to him, he said, that the Board stayed with the substance of their original reasoning. What emerged was, therefore, broadly parallel to the letter written by the Board on 7th November, 2012. The reason for refusal was in accordance with a condensed version of that letter with particular reference to its first paragraph. He denied adding vocabulary in writing up the decision. That evidence must be accepted as probable.
9. Further, it is to be presumed that statutory bodies function lawfully as they are designed by legislation. Keeping records of everything is not necessarily a guide to the fundamentals of a decision. In any corporate undertaking, different views will be expressed by different people some of them, as in this decision by a bare majority, widely differing. What matters is the responsibility of the Board as a statutory corporation. In O’Donoghue v An Bord Pleanála [1991] I.L.R.M. 750 an issue arose as to the keeping of records by the Board. A sensible view was adopted by Murphy J at p. 759-760 which is equally applicable to the facts of this case:
I find it difficult to envisage circumstances in which the failure of an administrative body to keep appropriate records would be of itself sufficient grounds to render its decision a nullity. I suspect that ordinarily the inadequate record would fall to be considered in conjunction with an inexplicable decision. In any event it seems to me that by any criterion the paucity of the records in the present case would not justify quashing the decision of the [Board] which was manifestly within its jurisdiction and for which they did have adequate material.
10. Section 146 of the Act of 2000, as amended, deals with the appointment of an inspector, and consequent reports, and with the furnishing of documents and maps to interested parties. Once a decision is made, the Board is only required under s. 146(5) to inform the public by making “documents relating to the matter” available for inspection. Since the principle of construction applicable requires words to be seen in context, it should be quoted. The subsection reads:
(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.
11. The decision was made available two days after the Board met. That decision mirrors in its wording what the Board had decided. The statutory scheme is thus fulfilled down to its last letter.
The road trip
12. Since 2008, all public bodies have been especially careful with expenditure. Hence, while members of An Bord Pleanála have looked at plans and have also viewed sites to get a grasp of how a proposed development might fit into a cityscape or landscape, this has tended to be done in their own time. Counsel for Kerry County Council has stated that since the Board is exercising an executive planning function, he could have no objection to members viewing sites or bringing to the discussion of plans whatever local knowledge they might have about an area. That is right. Such a course would, in any event, be inevitable for many projects. A member of the Board might live in Swords and might pass on his or her bus route a site that is proposed to be suitable for a top class but multi-storied hotel near Dublin Airport. Particularly good sightlines can be achieved from the upper deck of a bus. It would be impossible for that person not to have a view informed by local knowledge. When a judge proposes to visit the scene of an accident, the usual course is to do so in court time and to invite solicitors from the opposing parties to accompany the view. This is different. Planning approval is an administrative and not a judicial function. Planning is about how houses, factories, sports facilities and roads may be properly fitted into the human and built infrastructure of an area; how developments will impact; how well built structures will fit; whether proposed plans accord with the democratically mandated development plan; and whether projects will harmoniously fit where they are sited. Planners need to take an overall view not just of one particular development but of how the repetition of permission through the potential re-engagement of similar circumstances may change the character of an area. Hence, suburban housing in the countryside once permitted has been shown by experience to be repeated. Road plans and speed limits will need consequent alteration. The precious resource of beautiful countryside may be replaced by a landscape appropriate to the outskirts of a city. This is but an example but one that has despoiled much of rural Ireland. All of this is a matter of foresight, thought and experience. Were planners, and this includes the Board as ultimate decision makers, precluded from exercising the knowledge of what a site visit has shown them or what living or working or holidaying close to a proposed development would illustrate to them, an unreal if not surreal situation would result. Deliberately only those who never had any acquaintance with an area into which it was proposed to put an apartment block or business building would have to be chosen as decision makers. They would have to avoid the site until a decision had been signed off on. This would be wrong. Yet, it is argued that this local knowledge is equivalent to judicial prejudice. That is untenable. There is nothing in the way of prejudice that knowing about a streetscape or an urban or country area could be regarded as equivalent to a juror knowing someone accused of a crime or a judge dealing with a case involving a former school friend. People have character; something often hidden and sometimes an unpleasant revelation to those who know them. What a person’s background is often determines how they act. Where that background involves unfair dealings, judicial proceedings are careful to ensure that if any specific incident is to become evidence that it is considered within a proper context. On the other hand, a plan to build involves static development. While such a plan has an impact that is understandable from drawings and maps, it can be best illuminated where planners have the chance to see how it may fit in. That, after all, must be partly why planning authorities are local. Where, as with major infrastructure and road projects, the Board is the first instance decision maker, it cannot be wrong for some or all of them to seek to become acquainted with the kind of real information that is inescapably part of the landscape of local planning decisions. Fundamentally, one might posit as an inescapable test of procedural fairness before administrative bodies: did the party now complaining have a reasonable opportunity to make any case which was essential to their point of view? That is the test on the authority of Ballyedmond v Commission for Energy Regulation [2006] IEHC 206 and Ashford Castle Ltd v SIPTU [2007] 4 IR 70. That principle was not breached in this case.
13. But, it is said that prejudice was introduced to the Board that irremediably contaminated its decision through this road trip. Multiple cases have been cited in pursuit of this argument including, Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 I.R. 412, Usk and District Residents’ Association Ltd v An Bord Pleanála [2010] 4 IR 113 and R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278. All of these cases are to the same effect: if a reasonable person observing the fullness of the circumstances that are said to give rise to bias would worry that a judge or quasi-judicial officer might not as a result of a circumstance claimed to introduce bias give a fair hearing, then the decision maker should retire from considering the issue; or if that person persists, then his or her decision is unsound. All of that is fine. It has, however, nothing to do with this. What happened is that Gabriel Dennison, who is a Board member, was given two days to travel from Dublin to Kerry and to see how the project proposed would most likely fit within the landscape and human environment as he observed it. He reported back. The documents show that the short report which he wrote up went to two other board members by email. Common sense suggests that while the Board deliberations, are as a matter of law, corporate in nature, and consequently what anyone said or how anyone else reacted to it is irrelevant save in the most exceptional circumstances, it is likely that he was asked what he saw and that he informed the other Board members in quite similar terms to his memo. Here is that report:
Notes on Road Trip 11-13 July 2013
This road trip was undertaken with the main purpose of viewing the […] road from Camp to Dingle in County Kerry which is scheduled for major improvement and is currently before the Board. A portion of the route has recently been upgraded in the vicinity of Annascaul so it is possible to assess the current state of the present road as well as the appearance and apparent impacts of the improved section.
I took the opportunity to see as much of the Dingle area as possible in a 48 hour visit as it is some time since I had been in the area. In addition I made time to view other areas on the route that have arisen from time to time in recent files such as Tralee, Listowel, Rathkeale, Tarbert and Limerick city.
I was greatly impressed by what I saw of the improvements wrought in Limerick city centre including the new King John’s castle visitors’ centre. Likewise, though to a lesser extent, Tralee. After even a short visit one can’t but be aware of the great architectural assets of both towns though both appear to have a pressing need to secure their conservation and thereby ensure the protection of the unique qualities them party to their urban settings.
As far as the N69 is concerned I noted the relatively light traffic using the route – notwithstanding it being a weekday leading up to the busy holiday weekend in mid-summer (and with unusually good weather conditions). I met 3 tour coaches coming towards Tralee on the route and saw none going in the other direction. I saw a total of four HCVs – again all heading east. I saw no cyclists between Camp and Dingle on the route. There were no hold-ups at any point. I’d averted to Inch beach for a brief visit and, predictably in view of the weather and time of year, it was fairly full of parked cars and sun bathing families.
The existing route is not as heavily vegetated as I expected and there are stretches where there is a lot of ribbon development (mainly at the Camp end and in the vicinity of the various towns and villages). The infamous hairpin bends are not as awesome as I had anticipated and noted that they had relatively poor advanced warning signs (merely a standard black and amber diamond sign). The new portion of the road is pleasant to drive and doesn’t present as a major imposition on the landscape. If anything one could say it helps the driver to appreciate the dramatic landscape more as it is more open than the existing road. I saw no cyclists on this stretch either notwithstanding the two new cycle paths.
As there were no available hotel rooms in the town of Dingle I travelled a few miles north towards [Baile an Fhertéirigh] to get accommodation and was able to see that the road is beyond Dingle are generally good and well surfaced – in some cases as good as the existing N69.
I visited the Blasket Islands Visitors Centre while in the vicinity. This is a good example of a major public building which sits very discreetly into the landscape unlike, it has to be said, too many of the modern houses in the area.
I returned from Dingle via the Connor Pass as the mist had lifted on Saturday and the views were corresponding[ly] superb. Traffic is well-managed on the Connor Pass road, e.g. there are no tour buses allowed. It was on this road that I saw the most cyclists – though over the course of the approximately 24 hours I was in the area I saw a total of less than a dozen cyclists.
In general one would have to say that while the tourism “product” offered by the Dingle peninsula is clearly underpinned by majestic landscape and considerable cultural assets it does suffer from lack of evident coordination and a sense of strategic vision – particularly West of Dingle. For example, there are few of any signposts to such sites as Dún an Óir on Smerwick Harbour (in State care) or the Blasket Islands Centre; signposts alternate between being all Irish to those where English is dominant and Irish is in italics to ones where this precedence is reversed. Other non-official signs are all in English! This must be very confusing to the non-Irish visitor (and sometimes even to the native!) Unlike the Connor Pass route tour buses of the largest type are permitted on the Slea Head scenic route leading to chaotic scenes on the narrow, twisting road or two cars can barely pass one another.
My return journey allowed me to visit Listowel, Tarbert and the Shannon estuary coastline in the vicinity of the LNG [Liquified Natural Gas] facility.
All in all this was a very helpful exercise in putting flesh on the bones of not only a specific project but a range of other matters with which I have been involved as well.
14. The Court is convinced that, as the writer records of that memo records, this trip and this report was nothing more than a look and see exercise. It was useful because made a particular project live within its appropriate context. In terms of planning law, there can be nothing wrong with this. The writer does mention, however, the presence or absence of cyclists in terms which might give rise to the apprehension that cyclists might not be expected, even were they to be specifically provided for. This leads on to the main substantive point which is the duties of An Bord Pleanála under the legislation devolved to the Board under roads legislation.
The Roads Acts
15. The essential argument by Kerry County Council here is that An Bord Pleanála is now a road authority and that it is subject to the Roads Acts 1993 to 2007 in making any decision. Thus, An Bord Pleanála is contended to be subject to the statutory imperatives therein contained: that it is not simply concerned with the proper planning and sustainable development of an area. In making this particular decision, it is argued that the Board erred in failing to take into account the needs of cyclists and pedestrians and consequently failed to exercise its jurisdiction properly.
16. In respect of this point, the issues of reasonableness, of proportionality, of the standard of judicial review for environmental decisions and availability of appeal remedies under the Aarhus Convention were all cast into the mix. This is unsatisfactory. But it is also usual in every major planning case. Such confusion by multiplication of tenuous argument goes nowhere. There is either a point here or there is not. Too often major planning judicial reviews are confused by taking every insubstantial issue into the mix: this is yet another such case. In the submissions of the Board, it is accepted that the Board is under the same obligations regarding the carrying out of an environmental impact assessment and undertaking the appropriate assessments necessary for the protection of European sites. It is further accepted that the Board operates under the usual statutory enjoinder which requires the Board to consider the proper planning and sustainable development of the area. This is helpful. What, in substance and stripping away irrelevant points, is argued by Kerry County Council is that the Board now has the functions of the Minister in approving roads. Even if that is not so, Kerry County Council argue that the Board in approving road decisions is obliged to have regard to a range of design obligations under the Roads Acts, most especially the need for roads to accommodate all road users. Even if that is not so, Kerry County Council argue that there is a duty on the Board to take into account the relevant policies of statutory bodies. In excluding cycleways, the Board is argued by Kerry County Council to have failed to take into account the need of cyclists to use the roadway and to use it safely. Further, in requiring the removal of the cycleway from the road, it is claimed that the Board ignored a relevant and important policy. Two initial points need to be made here.
17. Firstly, the review of administrative decisions is not simply one as to whether the body in its decision flew in the face of fundamental reason and common sense; the reasonableness standard. An administrative body is obliged to do what it is set up to do. This means taking into account that which it is obliged to consider and excluding from its consideration all that is irrelevant to its statutory function. As Clarke J. put the matter in Sweetman v An Bord Pleanála [2008] 1 IR 277 at 298, paras. 6.12 -6.13:
6.12 Firstly it is important to remember that a court, in judicial review proceedings, is not confined to the irrationality test identified in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. That is but one ground which can be advanced. A court is also entitled (and indeed is duty bound) to consider matters such as whether the decision maker had regard to factors which ought not properly have been included in the consideration or failed to have regard to factors which should properly have been considered. O’Keeffe v. An Bord Pleanála irrationality only arises in circumstances where the decision maker properly considered all of the matters required to be taken into account and did not take into account any matters which should not. The limitations inherent in the O’Keeffe v. An Bord Pleanála irrationality test, therefore, only arise in circumstances where all, but only, those matters properly considered were taken into account and where the decision maker comes to a judgment based on all of those matters. It is in those circumstances that the court, by reason of the doctrine of deference, does not attempt to second guess the judgment of the person or body concerned provided that there was material for coming to that decision. In particular the court does not attempt to re-assess the weight to be attached to relevant factors.
6.13 The overall jurisdiction is not, therefore, as narrow as a consideration of O’Keeffe v. An Bord Pleanála irrationality alone might suggest.
18. Secondly, the issue of proportionality has been argued by Kerry County Council separately from the question of rationality. Again, that is not helpful. Such arguments come out as if a judicial review were an appeal on the merits. The Court has no function in that regard. That issue as to whether proportionality is separate as a ground for judicial review to reasonableness may be regarded as settled since the decision of the Supreme Court in Meadows v Minister for Justice [2010] 2 IR 701. If a decision is shown to be disproportionate in terms of its analysis of competing factors, or if disproportion must necessarily be inferred from the terms of a decision, it may be possible to demonstrate that the level of irrationality needed to require the High Court to interfere is manifest. And this may be so despite the reluctance of the courts to interfere with assessments of fact relevant to the special skills and knowledge of specialist bodies such as An Bord Pleanála. It is not easy to argue disproportion in a decision as a ground of unreasonableness. If there was material before the Board which could justify a decision as rational, then there is no jurisdiction to review it judicially. This Court put the matter thus in Weston Ltd v An Bord Pleanála [2010] IEHC 255 at paras 11-12:
11. The burden of proof of any error of law, or fundamental question of fact, leading to an excess of jurisdiction, or of demonstrating such unreasonableness as flies in the face of fundamental reason and common sense, rests on Weston the applicant in these proceedings. Once there is any reasonable basis upon which the planning authority or An Bord Pleanála 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. Furthermore, where, as a colourable device, a reason is chosen for refusing permission which does not give rise to an entitlement to compensation under the legislation, the burden of proving that a decision choosing such an incorrect reason for that improper purpose rests on the applicant. The presence in the planning file, including the report to the manager, or in the case of An Bord Pleanála, the report of the inspector, of any material which could rationally justify a refusal on a non-compensatory ground is sufficient to support the lawfulness of a decision. Of course, in an appropriate case, it might be possible to prove that a decision was made for an improper purpose or that a conclusion or recommendation in an inspector’s report was not arrived at in good faith. That burden however, rests on the applicant for judicial review who seeks to impugn such a decision. Some material ground, upon which such an attack might reasonably be regarded as being capable of being mounted, must be shown in evidential terms before even leave to argue such ground would be granted. In accordance with the legislative circumscription of judicial review appeals against planning decisions, substantial grounds would have to be shown to justify granting leave on such a point.
12. In Lancefort Limited v. An Bord Pleanála (Unreported, High Court, McGuinness J., 12th March, 1998), the following passage on the burden of proof, at pp. 21-22, which applies as much to a planning authority as to An Bord Pleanála appears:-
“Counsel for the Notice Party also submitted that where the evidence as to whether a statutory body entrusted by the legislator with a particular function did not exercise its statutory duties, there is a presumption of validity in favour of the decision under attack Finlay P. in re Comhltas Ceolteorí Éireann (High Court unreported 14th December, 1977) said (at pages. 3-4 of the transcript of his Judgment):
“A planning authority is a public authority with a decision-making capacity acting in accordance with statutory powers and duties. In my view, there is rebuttable presumption that its acts are valid.”
It appears to me that this submission is well founded. The onus of prove [sic] in establishing that An Bord Pleanála did not consider the question of environmental impact assessment… and thereby rebutting the presumption of validity of the Bord’s decision, lies squarely on the Applicant. That burden of proof, it seems to me, has not been fully discharged.
In addition, the Court has discretion in regard to Orders sought by way of judicial review. In this case, the Bord had before it ample material on which to make its decision. The report of the inspector raises and refers to many of the matters which would also be covered in a environmental impact assessment. Finally, no participant in the oral hearing suggested that an environmental impact assessment was required. Bearing all these matters in mind I would be reluctant to exercise my discretion in favour of the Applicant on this point”.
19. Essential to this issue on the duty of An Bord Pleanála when making decisions on road applications is the attempt to sort out the multifarious sections and amendments that define its functions and its duty. That, it might be said, is far from easy. The Law Reform Commission has performed a salutary public service in bringing this kind of legislation up to date on http://www.lawreform.ie/revised-acts/alphabetical-list-of-revised-acts.360.html. Quotes are taken from this.
20. Who has the duty to decide what roads are necessary and how they should be built? Undoubtedly, the answer to that is that local authorities alone have such power. It would be beyond any reasonable construction of the scope of any powers of An Bord Pleanála to require as a condition of granting planning permission for a road, to require that another road should be built elsewhere. That can be argued to be part of this issue since a section of the argument of the statutory inspector for refusal, not adopted by the Board, was that some kind of a greenway ought to be constructed along an alternative route and that this would be the ideal way to accommodate cyclists. That may be right as a matter of fact, but does An Bord Pleanála have such a power? Section 13 of the Roads Act, 1993, as substituted by s. 6 of the Roads Act, 2007, states as to its material part:
13 (1) Subject to Part III [concerning the National Roads Authority], the maintenance and construction of all national and regional roads in a county or city is a function of the council of that county or city.
(2) It is the function of a local authority to maintain and construct all local roads—
(a) in the case of a county council — in its administrative area, other than the administrative area of any borough or town referred to in Chapter 2 of Part 1 of Schedule 6 to the Local Government Act 2001 situated within the county of the council, and
(b) in the case of any other local authority — in its administrative area.
(3) The local authorities referred to in subsections (1) and (2) are road authorities for the purposes of the roads referred to in those subsections and shall, subject to Part III and in respect of those roads, perform all the functions assigned to road authorities by or under any enactment (including this Act) or instrument.
(4) The expenses of a county council in respect of its functions under subsection (2) shall be charged on the county of the council exclusive of any borough or town that is situated within the county.
(5) In the performance of their functions under subsections (1) and (2), a road authority shall consider the needs of all road users.
21. It is said in argument by An Bord Pleanála that cyclists do not use this road much and if they do, then serious cyclists will use any road and that if they are less fit cyclists that they should await the planned dedicated greenway. But perhaps this will never happen. Perhaps also a principle to be born in mind on occasion is that the best is the enemy of the good. Cyclists are vulnerable and it is to be assumed that both sides in this case consider them worthy of protection. There may be many or there may be few though, whatever their number, cyclists are disadvantaged on Irish roads by the lack of, or only very sporadic consideration of, their needs. But, as to what should be done, the Court has no competence in deciding these issues. The question is what does the law require?
22. Section 15 of the Roads Act 1993 concerns the power of the Minister to give general directions as to the manner of construction and maintenance of public roads. Section 41 deals with the entitlement of the Minister responsible to give directions in writing to the National Roads Authority. Establishing a safe and effective road network is tasked to the Authority in more specific powers granted under section 17. Section 22(1) provides:
The Authority may, in relation to its functions under this Act, at any time make recommendations in writing to a planning authority as to the content of that authority’s development plan and any such recommendations shall be considered by the planning authority.
23. The Board is for these purposes a planning authority but, of course, it has no competence in drawing up any development plan. Section 47 concerns how the local authority or the National Roads Authority should apply for planning permission where that application relates to:
(a) a motorway scheme,
(b) a service area scheme,
(c) a busway scheme,
(d) a protected road scheme, or
(e) a protected road scheme amending a protected road scheme approved under section 49.
24. Section 49, as amended, sets out the jurisdiction of An Bord Pleanála. This, in its current state may be regarded as confusing because section 215(1) & (2) of the Planning and Development Acts, 2000-2007, in other words the Planning and Development Act 2000, as amended, means that certain powers of the Minister in terms of road scheme approvals are to be construed as powers of An Bord Pleanála:
215.—(1) The functions of the Minister in relation to a scheme or proposed road development under sections 49 , 50 and 51 of the Roads Act, 1993 , are hereby transferred to and vested in the Board and relevant references in that Act to the Minister shall be construed as references to the Board and any connected references shall be construed accordingly, except that any powers under those sections to make regulations or to prescribe any matter shall remain with the Minister.
(2) The references to the Minister in section 19 (7) and paragraphs (a), (c), (e) and (f) of section 20 (1) of the Roads Act, 1993 , shall be deemed to be references to the Board.
Consequently, even though the first subsection of section 49 of the Roads Act 1993 is properly amended, the references to the Minister which occur thereafter are in fact references to An Bord Pleanála even though it does not state that:
49 (1) A road authority or the Authority shall submit any scheme made by it under section 47 to An Bord Pleanála for its approval.
(2) Before approving a scheme submitted to him the Minister shall—
(a) cause a public local inquiry into all matters relating to the scheme to be held,
(b) consider any objections to the scheme which have been made to him and not withdrawn,
(c) consider the report and any recommendation of the person conducting such inquiry.
(3) The Minister may, by order, approve a scheme with or without modifications or he may refuse to approve such a scheme and shall publish in one or more newspapers circulating in the area where the proposed motorway, busway, protected road or service area is to be located notice of his decision, including, where appropriate, particulars of any modifications to the scheme.
(4) The Minister may, in any case where he considers it reasonable to do so, direct the road authority to provide for any person who, by reason of the implementation of a motorway, busway, protected road or service area scheme—
(a) is permanently deprived of reasonable access to or from his property or to or from one part of his property to another — a suitable alternative means of access,
(b) is, during construction, temporarily deprived of reasonable access to or from his property or to or from one part of his property to another —a temporary means of access during the course of such construction, and the road authority shall comply with any such direction.
(5) Where a scheme made by a road authority under section 47 specifies a planning permission which it is proposed to revoke or modify and where the Minister—
(a) refuses to approve the scheme, or
(b) approves the scheme with modifications and the effect of such modifications is that the specified planning permission will not be revoked or modified or will be modified in a form other than that specified in the scheme as made by the road authority, the duration of such planning permission shall, notwithstanding section 40 of the Act of 2000, be extended by a period specified in the order of the Minister under subsection (3), the duration of which shall be equivalent to the period beginning on the date on which the scheme was made by the road authority and ending on the date on which the decision referred to in paragraph (a) or (b) was made by the Minister.
(6) Where the Authority has submitted a scheme for approval under subsection
(1) references to road authority in the other provisions of this section in respect of the scheme are to read as references to the Authority.
25. It is perhaps instructive to consider what that section looked like before it was amended; and, in that regard, the most substantial change is that previously the relevant Minister was the authority for the approval of roads:
49.—(1) A road authority shall submit any scheme made by it under section 47 to the Minister for his approval.
(2) Before approving a scheme submitted to him the Minister shall—
(a) cause a public local inquiry into all matters relating to the scheme to be held,
(b) consider any objections to the scheme which have been made to him and not withdrawn,
(c) consider the report and any recommendation of the person conducting such inquiry.
(3) The Minister may, by order, approve a scheme with or without modifications or he may refuse to approve such a scheme and shall publish in one or more newspapers circulating in the area where the proposed motorway, busway or protected road is to be located notice of his decision, including, where appropriate, particulars of any modifications to the scheme.
(4) The Minister may, in any case where he considers it reasonable to do so, direct the road authority to provide for any person who, by reason of the implementation of a motorway, busway or protected road scheme—
(a) is permanently deprived of reasonable access to or from his property or to or from one part of his property to another — a suitable alternative means of access,
(b) is, during construction, temporarily deprived of reasonable access to or from his property or to or from one part of his property to another — a temporary means of access during the course of such construction, and the road authority shall comply with any such direction.
(5) Where a scheme made by a road authority under section 47 specifies a planning permission which it is proposed to revoke or modify and where the Minister—
(a) refuses to approve the scheme, or
(b) approves the scheme with modifications and the effect of such modifications is that the specified planning permission will not be revoked or modified or will be modified in a form other than that specified in the scheme as made by the road authority, the duration of such planning permission shall, notwithstanding the Act of 1982, be extended by a period specified in the order of the Minister under subsection (3), the duration of which shall be equivalent to the period beginning on the date on which the scheme was made by the road authority and ending on the date on which the decision referred to in paragraph (a) or (b) was made by the Minister.
26. Section 50, as it now stands, requires an environmental impact statement to be drawn up in appropriate cases. This was done here. Section 51 amplifies the previous sections as to the authority exercised by An Board Pleanála in cases where it is the decision making authority. Again, references to the Minister, one must remind oneself, are in fact references to An Bord Pleanála. It reads:
51(1) A proposed road development shall not be carried out unless An Bord Pleanála has approved it or approved it with modifications.
(2) The road authority concerned or the Authority, as the case may be, shall apply to An Bord Pleanála for the approval referred to in subsection (1) in relation to a proposed road development it proposes and shall submit to An Bord Pleanála the environmental impact statement prepared in respect of the development.
(3) Where a road authority has made an application for approval under subsection (2), it shall as soon as may be—
(a) publish in one or more newspapers circulating in the area in which the proposed road development would take place a notice in the prescribed form—
(i) stating that it has made an application to the Minister for the approval of the proposed road development,
(ii) stating that an environmental impact statement in respect of the proposed road development has been prepared,
(iii) indicating the times at which, the period (not being less than 6 weeks) during which and the place where a copy of the environmental impact statement may be inspected,
(iv) stating that a copy of the environmental impact statement may be purchased on payment of a specified fee not exceeding the reasonable cost of making such copy,
(v) stating that submissions may be made in writing to the Minister in relation to the likely effects on the environment of the proposed road development during the period referred to in paragraph (a)(iii);
(vi) where relevant, stating that the proposed road development is likely to have significant effects on the environment in Northern Ireland, and
(vii) specifying the types of decision An Bord Pleanála may make, under section 51(6), in relation to the application;
(b) send a copy of the environmental impact statement together with a notice in the prescribed form, stating that the authority has made an application for approval of the proposed road development and that submissions may be made in writing to the Minister within a specified period (which shall be that referred to in paragraph (a)(iii)) in relation to the likely effects on the environment of the proposed road development to each of the following—
(i) the Commissioners of Public Works in Ireland,
(ii) Bord Fáilte Éireann,
(iii) An Taisce — the National Trust for Ireland,
(iv) any other prescribed body or person;
(c) send a copy of the environmental impact statement to the prescribed authority in Northern Ireland where the proposed road development is likely to have significant effects on the environment in Northern Ireland or where that authority so requests, together with a notice in the prescribed form, stating that the authority has made an application for approval of the proposed road development and that submissions may be made in writing to the Minister in relation to the likely effects on the environment of the proposed road development.
(d) where the environmental impact statement and a notice has been sent to the prescribed authority in Northern Ireland pursuant to paragraph (c), enter into consultations with that authority regarding the potential effects on the environment of the proposed road development and the measures envisaged to reduce or eliminate such effects.
(4) The Minister may require a road authority which has applied to him for an approval in accordance with subsection (2) to furnish him with specified additional information in relation to the likely effects on the environment of the proposed road development and the authority shall comply with any such requirement.
(4A) The Minister shall, where he considers that additional information furnished in accordance with a requirement under subsection (4) contains significant additional data in relation to the effects on the environment of the proposed road development, require the relevant road authority to —
(a) publish in one or more newspapers circulating in the area in which the proposed road development would take place a notice stating that significant additional information in relation to the said effects has been furnished to the Minister, that the additional information will be available, for inspection or for purchase (on payment of a specified fee not exceeding the reasonable cost of making a copy), at a specified place and at specified times during a specified period, and that submissions or observations in relation to the additional information may be made in writing to the Minister before a specified date, and
(b) send notice of the furnishing to the Minister of significant additional information, and a copy of the additional information, to the bodies and persons and the authority (where appropriate) referred to in subsections (3) (b) and (c) and to indicate to such bodies and persons and the authority (where appropriate) that submissions or observations in relation to the additional information may be made in writing to the Minister before a specified date.
(5) Before approving a proposed road development the Minister shall—
(a) consider the environmental impact statement submitted under subsection (2), any additional information furnished under subsection (4) and any submissions made in relation to the likely effects on the environment of the proposed road development,
(b) consider any views of the prescribed authority in Northern Ireland where a copy of the environmental impact statement was sent to it in accordance with subsection (3) (c),
(c) consider the report and any recommendation of the person conducting an inquiry referred to in subsection (7) where evidence is heard at such inquiry in relation to the likely effects on the environment of the proposed road development.
(6) The Minister may, by order, approve a proposed road development with or without modifications or he may refuse to approve such a development and shall—
(a) publish in one or more newspapers circulating in the area in which the proposed road development would take place notice of his decision, including, where appropriate, particulars of any modifications to the proposed road development, (aa) The said notice shall inform the public that a person may question the validity of any determination by An Bord Pleanála on a proposed road development by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986).
(ab) The notice shall identify where practical information on the review mechanism can be found.
(b) inform the prescribed authority in Northern Ireland of his decision where a copy of the environmental impact statement was sent to it in accordance with subsection (3) (c).
(6A) A notice published by the Minister pursuant to subsection (6) shall indicate the times at which, the period during which and the place where a copy of the decision and the relevant environmental impact statement may be inspected.
(7) (a) The person conducting—
(i) a public local inquiry under section 49, or
(ii) a local inquiry in relation to a bridge order under section 47 of the Act of 1946, or
(iii) a public local inquiry in relation to the compulsory acquisition of land, which relates wholly or partly to a proposed road development in respect of which a road authority has applied for an approval under this section shall be entitled to hear evidence in relation to the likely effects on the environment of such development.
(b) Where an application for approval under this section relates to a proposed road development, and
(i) a scheme submitted to the Minister for approval under section 49, or
(ii) an application submitted to the Minister for a bridge order under the Act of 1946, or
(iii) a compulsory purchase order submitted to the Minister for confirmation, relate wholly or partly to the same proposed road development, the Minister shall make a decision on such approval and on the approval of such scheme or the making of such bridge order or the confirmation of such compulsory purchase order at the same time.
(8) (a) The European Communities (Environmental Impact Assessment) (Motorways) Regulations, 1988 (S.I. No. 221 of 1988) are hereby revoked.
(b) The European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989) and the Local Government (Planning and Development) Regulations, 1990 (S.I. No. 25 of 1990) shall not apply to proposed road development.
(9) Where the Authority makes an application for approval under subsection (2) references to road authority in subsection (3) and its following provisions of this section in respect of the application are to be read as references to the Authority.
27. None of this is easy to construe. There are a multiplicity of provisions coming from disparate sources. This is even more especially so as there is, as has been argued on behalf of Kerry County Council, an obligation on An Bord Pleanála to have regard to the policies and objectives of public authorities. Section 143 of the Act, 2000, as substituted by s. 26 of the Planning and Development (Strategic Infrastructure) Act, 2006, reads:
(1) The Board shall, in performing its functions, 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 National Spatial Strategy and any regional planning guidelines 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.
28. Returning to fundamental principles, the following emerges. Firstly, An Bord Pleanála has taken the place of the Minister in approving or refusing to approve road schemes. Secondly, in consequence, the authority of the Minister has become through statutory amendment confined to matters of general direction to local road and urban authorities and is not concerned with the impact of the road on the environment or whether the necessary consultations have taken place and the necessary enquiries have been drawn up or whether the needs of all road users have been considered or whether the policies of statutory bodies have been also considered. Thirdly, in considering whether a road ought to be approved or not, the Board must have regard, as a matter of statute, to whether the road authority applying has fulfilled its statutory responsibilities. In this regard, the responsibility of the local roads authority under s. 13(5) of the Roads Act of 1993, as amended, is most relevant. Such an authority is obliged in formulating a scheme for a road to “consider the needs of all road users.” That includes bicyclists and pedestrians. Even was that not to be the case, s. 143 of the Act of 2000, as amended, obliges the Board to have regard to the policies and objectives of statutory bodies. It cannot reasonably be argued that a policy of Government can be excluded from this imperative. Even less tenable is any argument that a statutorily mandated requirement to have regard to the needs of all road users could be ignored. Though expressed in statutory terms, it is the unequivocal policy of the Government, and of the Oireachtas as declared through legislation, that roads should be maintained and constructed in consideration not simply of cars, commercial vehicles and buses, but of all road users. This means that the needs of cyclists and pedestrians must also be included for the proper formulation of plans.
29. An argument of Kerry County Council which is merely additional, in that regard, is that the Department of Transport supported the inclusion of cycleways, at least to some degree, in ‘Smarter Travel: A Sustainable Transport Future, 2009’ and more pertinently and in explicit terms in the report of the national tourism authority in ‘Strategy for the Development of Irish Cycle Tourism, 2007’. That is correct. But, the much stronger position is that the needs of cyclists and pedestrians must be considered in all road planning. That is a clear statutory imperative. There is no evidence at all that in regard to the decision of An Bord Pleanála of the 4th September 2013 refusing this road proposal, or in its explicit direction to Kerry County Council to remove cycleways from the proposal by its letter of the 7th November, 2012, that these considerations played any part in this process. Rather, there is strong evidence that an appropriate consideration was excluded. Furthermore, it is worth noting that 5.2 km of this proposed route already has a fenced off cycleway. This section of roadway as so constructed was regarded as relatively unobtrusive in the report of the trip by the Board member to West Kerry. Moreover, while the argument by Kerry County Council that mistakes were made by the inspector has been overplayed as to the effect on width of the road by the removal of the cycleways, perhaps 4 metres are being saved by excluding consideration for cyclists from a potential width of 28 metres while a two way off road cycleway, such as exists for a 5 km stretch already, allows a saving of 1.5 metres. What is important in road safety terms is to keep speeds low and to avoid bicycles and pedestrians crossing the carriageway. Car drivers play little heed to warning signs. Similarly overplayed was the argument by Kerry County Council that no regard was had at all to alternatives to cyclists using this national route in going from Tralee to An Daingean. Certainly, the inspector mentions this in his report. In that report a determined expression is made that the cycle route should be gotten right from the very beginning. The alternative green way type of solution is regarded as better by the inspector. But, in terms of reality, it is not legally tenable to construe the labyrinthine interactions between the Planning and Development Acts and the Roads Acts as enabling An Bord Pleanála to grant permission but only on the basis that an alternative exclusive cycling and pedestrian way is constructed. That seems to this Court to be outside the competence of the Board in terms of any condition that might be attached to the grant of permission because, under the Roads Acts, that express function is that of the local roads authority. Clearly, that was not done by the Board. The crucial problem here was the exclusion of consideration for cyclists. The point is not essential to the decision and is only mentioned because it was thrown into the mix.
30. There was therefore a failure by An Bord Pleanála to consider the needs of cyclists and pedestrians in turning down a road scheme which made express provision for them in accordance with an appropriate National Roads Authority model for this type of highway. Even were that not the case, there is no evidence which supports the contention that regard was had by An Bord Pleanála to the strategy of the Government in regard to cyclists, as expressed in legislation or of the responsible plans of statutory bodies.
31. The other points argued at length are not necessary to the Court’s decision. Only the point just decided was of any merit at all.
Conclusion
32. The complexity of the relevant legislation has made the task of An Bord Pleanála in relation to road planning authorisation and refusal very difficult indeed. The time line in this case shows, however, the care exercised by both Kerry County Council and An Bord Pleanála in discharge of their tasks. A submission was made as far back as the 22nd November, 2011, for the road improvement scheme. Section 182E of the Act of 2000, which allows for structured consultations, is applicable only to gas and electricity applications. As to the unusually complex burden which An Bord Pleanála has been required to assume in road approval cases, section 217B allows the Board to request further submissions from any person who has already communicated as such “or any other person who may … have information which is relevant” and enables it to hold meetings with the road authority “or any other person”. In that respect, a written record of such meeting must be kept and must be made available on the planning file. In cases requiring an environmental impact statement, such meetings probably are suspected as giving rise to a new range of problems in cases in which multiple challenges are invariably part of the legal landscape. Nonetheless, a formal mechanism of consultation is built into the legislation. In future, it may assist in permeating this unique burden of competence through competing legal sources. No such consultation, however, ever has the competence in law to fetter the discretion of An Bord Pleanála but might, however, help in the search for a way forward in similar road approval cases where road authorities and An Bord Pleanála are working towards the protection of cyclists and pedestrians in making provision for highway use. As previously noted, the Board did exercise its functions under section 217 B(4) in suggesting alterations, and as the legislation makes clear, where the Board expresses that it is “provisionally of the view that it would be appropriate to approve the scheme” were those alterations to be made, such a provisional view cannot bind the Board.
33. In the light of the findings made, the decision to refuse is quashed and the matter is remitted. Neither party has sought leave to appeal. Neither party has sought costs.
The State (Pine Valley) v. Dublin County Council
Outline PP
Barrington J.
[1984] IR 410
H.C.
Barrington J.
27th May 1981
This is a motion to make absolute a conditional order of mandamus granted by me to the prosecutors on the 8th December, 1980, and directed to the respondents commanding them to grant planning approval to the prosecutors on foot of an application for planning approval made by them on the 16th July, 1980. The application relates to the development of a site at Moreenruggan/Ashfield, Newlands, Clondalkin, in the county of Dublin in accordance with plans and particulars lodged by the prosecutors.
The background to the matter is as follows. On the 26th April, 1976, the prosecutors applied for outline permission for a proposed industrial development at the site aforesaid. On the 25th June, 1976, the respondents notified the prosecutors of the respondents’ decision to refuse the said application. The reasons given for the refusal were as follows__
“1. The site is located in an area zoned to provide for the further development of agriculture and to preserve open space amenity in the development plan. The development proposed would contravene materially these objectives, would not be in accordance with the proper planning and development of the area, and would seriously injure the amenities of the area.
2. Public piped sewage services are not available to serve the proposal and the proposed private treatment plant is not acceptable to the Council.
3. The proposed development will be premature by reason of the said existing deficiency in the provision of sewage facilities and the period within which such deficiency may reasonably be expected to be made good.
4. The proposed development, with inadequate and unsatisfactory access arrangements and with inadequate off-street car parking and loading/unloading facilities, would endanger public safety by reason of traffic hazard by reason of the unacceptable generation of additional traffic turning movements on the existing heavily trafficed Belgard Road and Naas Road dual carriageway.”
The prosecutors appealed to the Minister for Local Government against this refusal and the Minister, by his order dated the 10th March, 1977, overruled the planning authority and granted the outline permission. The Minister’s permission was subject to one condition only which was as follows__ “The developer shall pay a sum of money to the Dublin County Council as a contribution towards the said Council’s expenditure on the provision of the public water supply and piped sewage facilities in the area. The amount to be paid and the time and method of payment shall be agreed between the developer and the said Council before the development is commenced, or, failing agreement, shall be as determined by the Minister for Local Government.”
The clear implication of this grant of outline permission is that the Minister authorised the prosecutors to install a private sewage treatment plant pending the installation of a piped sewage system by the County Council.
Pursuant to the said outline permission granted by the Minister, the prosecutors on the 16th July, 1980, applied to the respondents for approval under the Local Government (Planning and Development) Acts, 1963 and 1976, for a proposed industrial warehouse and office development at the said site. By notice dated the 15th September, 1980, the respondents notified the prosecutors of the respondents’ intention to refuse the said application. The reasons given for the refusal are as follows__
“1. The site is located in an area zoned ‘to provide for the further development of agriculture and to preserve open space amenity’ in the development plan. The development proposed would contravene materially these objectives, and would not be in accordance with the proper planning and development of the area, and would seriously injure the amenities of the area.
2. Public piped sewage services are not available to serve the proposal and the proposed private treatment plan is not acceptable to the Council.
3. The proposed development would be premature by reason of the said existing deficiency in the provision of sewage facilities and the period within which such deficiency may reasonably be expected to be made good.
4. The proposed development, with inadequate and unsatisfactory access arrangements and with inadequate off-street car parking and loading/unloading facilities, would endanger public safety by reason of the traffic hazard by reason of the unacceptable generation of additional traffic turning movements on the existing heavily trafficed Belgard Road and Naas Road dual carriageway.
5. The site of this application is different from the site the subject of outline permission granted by the Minister on appeal and hence cannot be regarded as an application for approval. The treatment of the omitted portion of the site has not been sufficiently indicated.”
From this it can be seen that the first four reasons given by the respondents in their notification of decision to refuse dated the 15th September, 1980, are identical with the four reasons given by them in their notification to refuse dated the 25th June, 1976. The fifth reason is a new reason. But it has been established in evidence before me that the lands which are the subject matter of the approval application are different from the lands which are the subject matter of the outline application only in the sense that a part is different from the whole. The outline permission relates to approximately 22 acres of land whereas the application for approval relates to 21.5 acres being portion of the said 22 acres and the balance being a small site retained by the original owner of the lands.
Accordingly, the case raises three net points of law which are as follows__
1. Is the respondent planning authority, when considering an application for an approval, at large, or is it confined within the four walls of the outline permission and competent only to consider matters not decided in the outline permission?
2. Is the respondent planning authority, in the circumstances of this case, competent to treat the application for approval, which relates to portion of the lands, as relating to a different site and, therefore, as not being covered by the outline permission?
3. Are the prosecutors statute barred from applying for an order of mandamus in this case because the notification of the decision to refuse is dated the 15th September, 1980, while the application for the conditional order of mandamus was not made until the 8th December, 1980?
To deal with the first point first, common sense would appear to me to indicate that a planning authority which is considering an application for an approval is confined within the four walls of the outline permission that has been granted in respect of the same lands. Mr. Walsh has submitted that there is a certain analogy between the procedure for an outline planning permission and the procedure for a declaration under s. 15 of the Intoxicating Liquor Act, 1960. Both procedures are designed to save an applicant from unnecessary and wasteful expenditure. In the one case, the applicant is saved the expense of having to build his public house before he discovers whether or not the court will issue a certificate in respect of it. In the other case, the developer is saved the expense of spending several thousand pounds, perhaps, on preparing elaborate plans for the construction of an office block only to discover that the planning authority will not permit the building of an office block on that particular site.
It appears to me that the purpose of the outline planning procedure is to enable the developers to discover whether a particular development is, in principle, acceptable to the planning authority. This whole procedure would be defeated if, at the approval stage, the planning authority could re-open the question of whether the development is acceptable in principle.
Section 24 of the Local Government (Planning and Development) Act, 1963, provides that, subject to the exceptions therein set out, permission shall be required for any development of land. No one is permitted to carry out any development of land in respect of which permission is required except in accordance with a permission granted under the Act. Section 25, sub-s. 2, of the Act provides that the Minister for the Environment may, by regulations, provide for the grant of permissions for the development of land and may make provision for applications “expressed to be outline applications” for permission to develop subject to the subsequent approval of the planning authority.
The Local Government (Planning and Development) Regulations, 1977 and in particular articles 17 and 18 of those regulations provide the machinery for applying for planning permissions. Article 17 provides that a planning application is to be accompanied by__
“(a) particulars of the interest held in the land or structure by the applicant, the name and address of the applicant and
(b) a copy of a newspaper circulating in the area in which the land or structure is situate in which there has been published a notice in pursuance of article 15, or
(c) a copy of the notice erected or fixed on the land or structure in pursuance of article 16.”
Article 19 provides that an outline application, notwithstanding the provisions of article 18, may, in addition to the matters prescribed in article 17, be accompanied only by such plans and particulars as are necessary to identify the land to which the application relates and to enable the planning authority to determine the siting, lay-out or other proposals for development in respect of which a decision is sought. Article 19, sub-article 2, provides that an application to a planning authority for an approval consequent on an outline permission shall be accompanied by such further particulars and plans as would be required under the provisions of article 18 if application for a permission were made under that article. Article 19, sub-article 5, provides that an outline permission shall not operate to authorise the carrying out of any development until an approval has been granted consequent on an application in accordance with sub-article 2.
Therefore, it appears that the Planning Acts and the regulations made thereunder contemplate__
1. A full permission in respect of which detailed plans must be lodged and on foot of which, if granted, development may commence immediately.
2. An outline planning permission in which the applicant seeks acceptance in principle of a proposed development; which outline permission, if granted, does not authorise the commencement of development until the applicant has obtained an approval.
3. An approval, which is a detailed approval by the planning authority of the development that has been permitted in principle under the outline permission, and which authorises the developer to commence development.
Therefore, it appears that an outline permission, followed by an approval, is equivalent to a full permission. It appears to me that a developer, having got his outline permission, has gone a certain length of the road; and that, when the developer applies subsequently for an approval, the planning authority is only concerned with the details of the means whereby the developer proposes to complete the development that has been already approved in principle by the planning authority. It appears to me to follow from this that the outline permission sets the parameters within which the planning authority must consider the application for an approval, and that it is not open to the planning authority to re-open, at the approval stage, matters which have already been permitted under the general terms of the outline permission. Surprisingly enough, there does not appear to be any case which specifically decides this point; but the point appears to me to be obvious and this may be the reason why it has not been raised previously.
Blundell and Dobry on Town and Country Planning (1963 ed.), in dealing with the corresponding provisions of the English legislation under the heading of “Binding Character of Outline Permission”, states at p. 112__
“If planning permission has been granted on the basis that it is an outline permission under regulation 5(2) of the Town and Country Planning General Development Order, 1950, and further approval of the local planning authority is required only in respect of matters reserved in the permission (i.e. details of siting and design or external appearance of the building or the means of access) before development is commenced, the local planning authority cannot re-open the matter by refusing approval for reasons not relating to reserved matters, such as that the land is not allocated for residential development or that the proposal conflicts with the local authority’s intention regarding residential development . . . It follows that an outline permission, however general the terms in which it is expressed, is as much a planning permission as one granted on fullest information; the only matters requiring the subsequent approval are those specifically reserved in the permission and the planning authority are committed by the permission to allowing the development in some form or other. Planning authorities should not grant permission in this form unless they are in possession of sufficient information to assess the merits of what is proposed, and the permission when granted should fix the main lines of the development.”
Mr. Smyth, who appeared for the respondent planning authority, advanced the ingenious argument that the respondents, unlike the Minister, are bound by the development plan and, in considering the application for approval, are restricted (in accordance with s. 26, sub-s. 1, of the Act of 1963) to considering the proper planning and development of the area. He submits that, notwithstanding the grant by a Minister of an outline permission, a planning authority must reject the application for the approval if they consider, at that stage, that the development violates the development plan in principle or is contrary to the proper planning and development of the area. I cannot accept that submission. It appears to me that under the provisions of s. 26 of the Act of 1963 the Minister was, in effect, an appeal court in regard to decisions of the planning authority and that, if a Minister has granted an outline permission, his decision is binding on the planning authority and it is not open to that authority to reconsider whether the development is acceptable in principle. In certain circumstances, a planning authority may revoke the planning permission but it appears to me that, as long as the outline planning permission stands, the planning authority is as much bound by the outline permission as if the planning authority had itself granted the permission. In my opinion, any other conclusion would have chaotic consequences.
That being so, it appears to me that a planning authority, in considering an application for approval, must consider it within the parameters of the outline permission. An application within those parameters is the only application it is called upon to consider at that stage. Therefore, if it attempts to re-open matters which have been decided by the outline permission, the planning authority is not considering the application which is before it. In the present case it is quite clear that the respondents attempted to reconsider matters which had been decided by the Minister when he granted the outline permission. Therefore, it appears to me that the respondents failed to consider the only application which was before them being an application for an approval within the parameters of the Minister’s outline permission.
In view of the conclusion I have just reached, it may not be necessary to consider whether the fifth reason given by the respondents for refusing the approval is a valid one. As previously stated, the site described in the approval application differs from the site described in the outline permission only in the sense that a part differs from the whole. The outline permission relates to a site of approximately 22 acres: the approval application relates to a site of some 21.5 acres which is portion of the same 22 acres. Therefore, if the respondents mean to convey that a person who has obtained an outline planning permission cannot apply for an approval which is confined to part only of the site, the respondents are clearly wrong. There is no doubt that a person who has obtained an appropriate outline permission can apply for approvals for various portions of the site as his development proceeds. Article 19, sub-article 3, of the Regulations of 1977 clearly states__ “An application for an approval consequent on an outline permission may be related to a specified part only of the development for which an outline permission was granted and separate applications may be made in respect of other parts of the said development from time to time.”
Therefore, it appears to me that an applicant who has obtained an outline planning permission in respect of a site is entitled to apply for an approval, or a series of approvals, in relation to a part or parts of it. The planning authority must consider such an application within the parameters of the outline permission and cannot refuse it simply because it relates to portion of the site unless there is something in it which, if implemented, would frustrate some term of the outline permission in relation to the balance of the site.
Mr. Smyth has argued that the services to be supplied in the present case relate to the totality of the site and that, therefore, in the circumstances of this case, it is not open to the prosecutors to apply for an approval in respect of only part of the site. I cannot accept this. It appears to me that, for this point to be valid, it would be necessary to show that there was something in the way the services were treated in relation to the application for approval of portion of the site which would frustrate the provision of services to the balance of the site.
Under these circumstances it appears to me that, if this were an application for certiorari brought within time, the prosecutors would be entitled to quash the respondents’ order because of the fifth reason, even if the other four reasons were permissible ones. However, this is not an application for certiorari and the significance of the fifth reason, in the context of the present application, is that it shows that the respondents declined, in effect, to consider the application which was before them, being an application for an approval in relation to portion of the site.
I now turn to the aspect of the case which has caused me the greatest difficulty. This is Mr. Smyth’s submission that the prosecutors’ application is statute barred. Section 82, sub-s. 3A, of the Act of 1963 states__
“A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of
(a) a decision of a planning authority on an application for a permission or approval under Part IV of the Principal Act . . .
unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.”
The decision in the present case was given on the 15th September, 1980. The present proceedings were not instituted until the 8th December, 1980. If the present proceedings were certiorari proceedings or prohibition proceedings it is clear that s. 82, sub-s. 3A, of the Act of 1963 would be a complete answer. These proceedings, however, are mandamus proceedings. The problem is the effect, on the prosecutors’ present motion, of the provision that a person may not “question” the validity of a decision of a planning authority on an application for a planning permission or approval “in any other legal proceedings whatsoever.” Mr. Smyth draws an analogy with s. 78 of the Housing Act, 1966. He submits that Mr. Walsh is questioning the validity of the decision of the respondent planning authority dated the 15th September, 1980. He submits that that order must be presumed to be valid until the contrary is shown and that the contrary cannot now be shown.
Mr. Walsh, however, submits that he is not questioning the validity of the decision of the 15th September, 1980. Certainly the prosecutors’ proceedings do not do so expressly. He says that he is showing that the respondents did not consider the prosecutors’ application for approval within the four walls of the outline permission. As that application was the only application before the respondents, he is showing that they did not consider the prosecutors’
application at all. He submits that it might be possible to have shown this in a number of ways and by different kinds of evidence. He has shown it by reference to the terms of the notification of a decision to refuse dated the 15th September, 1980. He submits that, once he shows that the prosecutors placed an application before the respondent planning authority and that the respondents did not consider and decide that application within two months from the date on which it was lodged, the prosecutors are entitled to invoke s. 26, sub-s. 4, of the Act of 1963, which provides that a decision by the respondents to grant the approval shall be regarded as having been given on the last day of that period. The prosecutors’ application for approval was lodged with the respondents on the 16th July, 1980, but (it is submitted) was never considered or decided by them. Therefore, it is claimed that a decision to grant the approval is to be regarded as having come into existence at the expiration of the relevant period by operation of law, and that the only purpose of the present proceedings is to direct the respondents to provide evidence of a decision which the law regards as having come into existence.
I have found both submissions forceful and have had difficulty in making up my mind between them. On the whole, however, I prefer Mr. Walsh’s submission. Mr. Smyth has argued that the effect of such a conclusion would, in many cases, be to deprive innocent people of their rights of appeal against a planning decision as they might not know of its existence until too late. But it appears to me that this risk exists in every case in which the statute deems a permission or an approval to have been granted because of some failure or default on the part of the planning authority. An applicant for permission cannot be blamed for this and he is entitled to such rights as the statute confers upon him.
In all the circumstances I disallow the cause shown and direct that an absolute order of mandamus issue.
The respondents appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 12th and 13th October, 1981.
R.N. Cooke S.C. (with him T.C. Smyth S.C. and J. Gallagher ) for the respondents__
A planning authority, when considering an application for the approval of details of a development for which apparently valid outline planning permission has been given is normally bound to take the outline permission as it stands and is not free to re-examine the application de novo, even in the light of information which became available only after the granting of that permission: Smith v. East Elloe Urban District Council 1 ; R. v. Secretary of State
for the Environment .2 [He also referred to Cartwright v. Ministry of Housing and Local Government 3 ; R. v. Paddington Valuation Officer 4 ]
In such a case, the approval of the planning authority must be deemed to have been given pursuant to s. 26, sub-s. 4(a), of the Act of 1963, if the planning authority has failed to notify the developer of its decision within the time specified in the sub-section. [He referred to Freenan v. Bray Urban District Council 5 ]
In this case, however, the invalidity of the outline permission was patent on its face, in as much as the Minister, on appeal from the planning authority, was no more free than the planning authority had been to disregard independently the development plan made by the planning authority for its area pursuant to s. 19 of the Act of 1963.
The Act of 1963 empowered neither the planning authority nor the Minister to permit unilaterally the material contravention of the development plan; such permission was not to be granted by the planning authority “save with the consent of the Minister” see s. 26, sub-s. 3, of the Act of 1963. Under the Act of 1963 (which was unamended at the material time) the Minister, on appeal from the planning authority, had no power to permit a material contravention of the development plan, in any circumstances. The Minister’s purported grant of outline permission to the prosecutors’ predecessor in title was, accordingly, so patently ultra vires the Minister that an application on foot of that purported grant could properly be dealt with as if it were an initial application for permission.
E.M. Walsh S.C. and J.G. Mathews for the prosecutors__
The obligation imposed by s. 26, sub-s. 5, of the Act of 1963 upon the Minister, on appeal from a decision of a planning authority, to have regard to the authority’s development plan is considerably less stringent than that imposed by sub-s. 1 of the section upon the planning authority itself. As the Minister has had no part in the formulation of the plan, the extent of his obligation is simply to take the plan into account as an indication of the reasonable (but not infallible) objectives of the planning authority. [They referred to s. 22, sub-ss. 1 and 2, of the Act of 1963]
Whatever legal infirmities might in any event have attached to the decision of the Minister in 1977 to grant outline permission to the prosecutors’ predecessors in title, it is not now open to the respondents to question the validity of the decision of the Minister given on the appeal to him: see s. 82, sub-s. 3A, of the Act of 1963.
The effect of s. 26, sub-s. 4, of the Act of 1963 is that, where an application for planning permission or approval has been made to a planning authority and the planning authority has not taken steps to notify the applicant of its decision within the appropriate period normally, and in this case, two months of the date of the receipt by the planning authority of the application (s. 26, sub-s. 4(b)(iii)) the planning authority is to be deemed to have given a decision to grant the permission or approval on the last day of the period: The State (Murphy) v. Dublin County Council .6 [They also referred to Chelmsford Rural District Council v. Powell 7 ]
The only application before the respondents was an application for approval of the details of the development for which permission in principle had already been given by the Minister’s outline permission. On such an application, a planning authority is free to refuse to approve details of the development, but not to reject the development in principle. [They referred to Hamilton v. West Sussex County Council 8 ] As this application for approval had never been specifically considered by the respondents, no valid decision on the application could have been either made by them or notified to the prosecutors and it is this failure to consider or to decide upon the application which brings the default procedure into play. An order of mandamus is sought against the respondents to compel them to make an order expressly permitting the development which they are deemed to have decided to permit: The State (Cogley) v. Corporation of Dublin .9 [They also referred to The State (P.J. Walls (Dublin) Ltd.) v. Ennis Urban District Council 10 ]
R.N. Cooke S.C. in reply__
An outline planning permission may validly be granted only where an outline permission has expressly been applied for: see s. 25, sub-s. 2(a), of the Act of 1963. The outline permission which the Minister purported to grant in 1977 had never been applied for by the developers. There was, accordingly, no valid permission in existence which could form a basis for an application for approval by the respondents.
Cur. adv. vult.
Walsh J.
5th February, 1982
On the 16th July, 1980, the prosecutor company applied to the respondent County Council for planning approval on foot of an application which related to a site at Newlands, Clondalkin, in the county of Dublin, in accordance with plans and particulars lodged by the prosecutors. That application for planning approval was a sequel to, and relied upon, a purported outline permission granted by the Minister for Local Government to the prosecutors on the 10th March, 1977. The purported outline permission granted by the Minister was the result of an appeal taken by the prosecutors against the decision of the respondents in June, 1976, to refuse an application for planning approval which had been made to them on the 26th April, 1976. Stated briefly, the reasons for that refusal were that the site was located in the green-belt area and that the development would contravene the development plan. It was also objected that public piped-sewage services were not available and that a proposed private treatment plant was not acceptable to the respondents, who are the planning authority for the area of the site.
The prosecutors’ appeal to the Minister was in form an appeal against that refusal of the application for planning approval but the Minister’s decision took the form of a grant of an outline planning permission, rather than dealing with the application as it was made to the planning authority.
Section 26 of the Local Government (Planning and Development) Act, 1963, provides at sub-s. 5(b) that, where an appeal is brought under that sub-section from a decision of a planning authority and is not withdrawn, the Minister shall determine the application as if it had been made to him in the first instance, and that his decision shall operate to annul the decision of the planning authority as from the time it was given. That is the procedure which the prosecutors availed of for the purpose of appealing against the refusal of the respondents. Section 26, sub-s. 3(a), prohibits a planning authority from granting, save with the consent of the Minister, permission under that section where the development concerned would contravene materially the development plan or any special amenity order relating to the area. Paragraph (b) of that sub-section provides that, where an application is made to the Minister for his consent for such a breach of the development plan, any person may furnish to the Minister in writing that person’s objection to the grant of the consent, and the sub-section required the Minister to consider, before granting the consent, any such objections which he received within 21 days after the receipt of the application.
In the present case the proposed development would have contravened in a material way the development plan. The respondents refused the prosecutors’ application for planning approval and did not seek to apply to the Minister for any permission to act in breach of the plan. The outline planning permission granted by the Minister on the appeal contravened materially the development plan.
The question which immediately arises is whether the Minister had any power to grant, on the hearing of such an appeal, a permission which would amount to a contravention of the development plan. The argument in favour of the Minister’s action on this point is that, as the Minister could authorise the respondents to do it, he could authorise himself to do it. On the other hand, it is clear that the Oireachtas removed from the discretion of the respondent planning authority a power to contravene the plan unless it was authorised by the Minister. That, in itself, is a clear indication of the seriousness with which the Oireachtas viewed any such element. Therefore, one would have expected that, if the Oireachtas had ever contemplated giving the Minister any such power (in effect, at first instance), the legislation would have said so.
Because of the fact that the statute, in reference to an application for such permission of the Minister, gave the Minister a particular jurisdiction to permit a contravention of the development plan by the planning authority but was silent with regard to any power of the Minister to do so on his own initiative on an appeal to him where no such application had been made, I am satisfied that the statute never contemplated and cannot be construed as meaning that the Minister had such a power.
The form of appeal contemplated is, in effect, an appeal by way of re-hearing. So far as the breach of the development plan is concerned, the original hearing by the planning authority had not involved any application to the Minister for permission to contravene the plan. Therefore, it appears to me that the Minister, in hearing the appeal as if the matter were being heard at first instance, was in no better position than the respondents had been, save that he was free to arrive at a different decision but only a decision within the contemplation of the statute. As was pointed out in the decision of this Court in Murphy v. Corporation of Dublin 11 , the Minister as such appellate tribunal is not exercising any of the executive functions of the State but is simply exercising statutory functions that have been conferred upon him as persona designata. He has no function in the matter outside the functions either expressly or by necessary implication conferred on him by the statute. In my opinion, there is nothing in the statute which can be found to substantiate the view that such power was expressly or by necessary implication conferred upon the Minister.
I am satisfied that the outline planning permission granted by the Minister was made without jurisdiction in so far as it permitted contraventions of the development plan and was, therefore, ultra vires and of no legal effect.
The present proceedings were brought for the purpose of obtaining an order from the High Court to compel the respondents to grant planning approval in conformity with the outline planning permission granted by the Minister. Notwithstanding the order of the Minister, the provisions of s. 26, sub-s. 3, of the Act of 1963 still bind the respondent planning authority and they are not entitled to grant any planning permission which would materially contravene the development plan, unless they obtain permission to that effect granted by the Minister upon application made by the respondents. As no such application was made, and as no valid permission to that effect was ever granted by the Minister, the respondents cannot be compelled to violate the provisions of the Act.
The prosecutors have sought to rely upon the default procedure provided by s. 26, sub-s. 4, of the Act of 1963. That sub-section provides that, where a planning authority either does not make any decision or, having made the decision, does not give notice of its decision to the applicant within a period of two months, the permission sought by the applicant should be regarded as having been given on the last day of the two-month period.
It appears to me to be quite clear that the section is included in the Act as an indication by the Oireachtas that planning authorities were to act within a reasonable time. While it might be thought that perhaps in some cases a period of two months was somewhat short, nonetheless that is the period which applies. It means that the permission sought shall be regarded as having been granted if the planning authority has not given notice of its decision (if any) within the two-month period, provided that a valid application has been made to the planning authority and that the application was made in accordance with the permission regulations and that all regulations have been complied with. This quite obviously contemplates a valid application and not one which is manifestly not permitted by the Act. The present application, in as much as it is an application for a permission which the respondents have no statutory or other power to grant because to do so would amount to a contravention of their own development plan is clearly not within the sub-section. In my view, the default procedure does not operate to produce an effect which is equivalent to the granting of permission in a case where the applicant seeks something which is prohibited by the statute. The principle of the decision of this Court in Monaghan Urban District Council v. Alf-A-Bet Promotions Ltd . 12 is relevant in the present context. An order of mandamus cannot issue to compel the respondent planning authority to consider an application to do something which would be illegal if it were done.
It is further argued on behalf of the prosecutors that the respondents should have moved by way of certiorari or otherwise to quash the Minister’s decision as one which was made without jurisdiction. The argument goes on then to submit that, in a case where no such move was made within the period of two months limited for that purpose by the Act of 1963, the decision stands. It is correct that the ruling of the Minister stands: but it stands as it is. If it is one which was made ultra vires and, therefore, is void on that account, it cannot be relied upon as a ground for seeking to compel any other person or body to do something which is illegal. Being an outline planning permission, or purporting to be such, it would have had to be followed up by the normal application for full development. That is the stage which the present case has reached. If the Minister had done what he did in the context of a full application, then it is very probable that the prosecutors could have gone ahead and built in accordance with his permission unless and until the respondents, by appropriate legal action, annulled the Minister’s order or otherwise restrained the prosecutors from proceeding. However, that is not this case.
In the result, therefore, I am of opinion that the order of the High Court ought to be set aside and that the cause shown ought to be allowed. I would allow the appeal.
Henchy J.
The prosecutors wish to develop certain lands near Newlands Cross, Naas Road, Clondalkin, in the county of Dublin, for an industrial estate (i.e., factories, warehouses and offices). For such development, they had to obtain permission under the Local Government (Planning and Development) Acts, 1963 and 1976, from the respondent County Council which is the planning authority for that area, or from the Minister for Local Government on an appeal to him.
In April, 1976, the prosecutors’ predecessor in title applied to the respondents for planning permission for that development on the 22.64 acres in question. The respondents, having duly considered the application, gave effectual notice of their decision to refuse the application. Annexed to the notification of their refusal were four reasons for that refusal [see p. 410, supra]. It is clear from the affidavits filed in the present proceedings on behalf of the respondents that, if they had granted the permission sought, they would have disregarded s. 26, sub-s. 3, of the Act of 1963 which forbade them to grant a permission which would materially contravene the plan, unless they had first applied for and obtained the consent of the Minister in the manner prescribed. The respondents were not prepared to seek that consent; it is easy to understand why. The lands in question were always used for agricultural purposes. They were zoned in the development plan for the further development of agriculture and to preserve open-space amenity. The respondent planning authority’s policy of having “visual breaks between urban areas” was stated in the plan in the following terms__ “In order to create a good living environment the [planning authority] considers that unbroken ever-expanding urban development without open green areas of separation is undesirable. It is, therefore, the policy of the [planning authority]to make considerable open green breaks both between the existing City and future development areas and also between the individual development areas. To this end it is the policy of the [planning authority] to preserve the necessary open areas of land.”
That declared policy of having green belts in order to prevent urban or suburban sprawl, as affirmed by the respondents and acquiesced in by the Minister, was plainly not intended to be cast aside by either the planning authority or by the Minister. Before a development permission which materially contravened the plan (as did the permission sought here) could have been granted, the respondents and the Minister would have had to comply with the requirements then specified in s. 26, sub-s. 3, of the Act of 1963. I reject unreservedly the contention put forward on behalf of the prosecutors that the Minister, when hearing an appeal from the refusal of a permission, had power, of his own motion and in the absence of a request therefor from the respondent planning authority, to grant the permission even though it materially contravened the plan. It is true that such a power has since been granted to An Bord Pleanala by s. 14, sub-s. 8, of the Act of 1976; but it was never given, either expressly or impliedly, to the Minister. Incidentally, it is of interest to note that, although An Bord Pleanala has been given that power, there is evidence that it has, subsequent to the Minister’s purported grant of outline permission, refused permission for industrial development of lands which included a major part of the lands in question here. This seems to emphasize the aberrant nature of the Minister’s action, to which I shall presently refer more fully, in reversing the respondents’ refusal and in granting outline planning permission.
Apart from the objection that the proposed development would constitute an unacceptable traffic hazard, the respondents founded their refusal of permission on the fact that the proposed development, which was intended to be drained by means of a “sewage treatment plant and local authority sewage system”, could not be operated because there was no public-authority sewerage system, either in existence or projected, which would be able to cope with the effluent that would be generated by the proposed development. It was the opinion of the respondents that it was not within their competence or that of the prosecutors to make the proposed development feasible in that respect.
It is no wonder, therefore, that the respondents refused the full planning permission sought by the prosecutors. Indeed, the proposed development would be such a blatant violation of the objectives of the development plan that one would not expect an appeal to be lodged against the refusal. But the prosecutors’ predecessor in title lodged a notice of appeal to the Minister in October, 1976. The new appellate procedure of an appeal to An Bord Pleanala under the Act of 1976 had not then come into operation. To the surprise and consternation of the respondents, the Minister allowed the appeal at least to this extent. Although the application to the respondents was for full development permission, the Minister treated it as an application for outline permission. On that footing, in March, 1977, he decided to give outline permission for industrial, warehouse and office development on the site, subject to the following single condition__ “The developer shall pay a sum of money to the Dublin County Council as a contribution towards the said Council’s expenditure on the provision of the public water supply and piped sewage facilities in the area. The amount to be paid and the time and method of payment shall be agreed between the developer and the said Council before the development is commenced, or, failing agreement, shall be as determined by the Minister for Local Government.”
The grant of such an outline permission (assuming that it was permissible to grant outline permission on an appeal from a refusal of an application for full development permission) was in excess of the Minister’s powers. It treated the sewerage difficulty as being the only matter that stood in the way of the proposed development, whereas the essence of the matter was that the proposed development offended against a crucial feature of the development plan, namely, the preservation of green belts between Dublin and the new towns (such as Tallaght and Clondalkin) which were designed to develop in an orderly and environmentally acceptable manner to the west of the metropolis. By granting the outline permission, the Minister violated an essential part of the plan. He did so by disregarding the conditions precedent to a permitted material contravention of the plan, and by ignoring the rights of the respondent planning authority and of those who were entitled to get notices and to be heard before such a material contravention could take place. It is no wonder that Parliament, in its wisdom, by the Act of 1976 transferred to an independent appeal board the appellate power which had been vested by the Act of 1963 in an individual who might be influenced in his decisions by political pressures or other extraneous or unworthy considerations.
The outline planning permission granted by the Minister in this case was clearly granted ultra vires and, therefore, was a nullity. Counsel for the prosecutors has contended that, even if that be so, there is now an absolute statutory bar on any attempt to question the validity of the Minister’s decision in any legal proceedings. The source of that submission is s. 82, sub-s. 3A, of the Act of 1963 which provides__
“A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of . . .
(c) a decision of the Minister on any appeal,
unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.”
This limited ouster of judicial intervention did not form part of the Act of 1963 originally It was interpolated in that Act by s. 42 of the Act of 1976. The Act of 1976, however, came into operation piecemeal by statutory instruments which the Minister was allowed to make by s. 46, sub-s. 3, of the Act of 1976. Section 42 of the Act of 1976 (and, therefore, the provisions of s. 82, sub-s. 3A, of the Act of 1963) did not come into operation until the 15th March, 1977: see S.I. No. 56 of 1977. Therefore, the Minister’s grant of outline planning permission on the 10th March, 1977, was made before s. 82, sub-s. 3A, of the Act of 1963 came into operation. In consequence, a questioning of the validity of that outline permission which establishes its nullity for having been madeultra vires is not precluded by the time bar introduced by s. 82, sub-s. 3A, of the Act of 1963. The latter sub-section is clearly intended to apply only to cases where an aggrieved person has had the full period of two months in which to question the disputed decision.
I deem it to be a fundamental rule of judicial interpretation that, when a statutory provision purports to oust, after a specified period, the jurisdiction of the Courts to question the validity of a decision which, up to then, would have been open to question in the Courts, the purported ouster will not have effect unless the exclusionary provision was in operation when the decision in question was made.
The ouster of jurisdiction aimed at by s. 82, sub-s. 3A, of the Act of 1963 was intended to remove at the end of two months the risk that the grant of permission could be questioned in the Courts at any time, thus enabling a duly granted development to be retarded by delaying tactics in the Courts long after the grant of permission had been made. Therefore, s. 82, sub-s. 3A, partakes of the characteristics of a statute of limitations. Apart from the fact that the Courts should be reluctant to surrender their inherent right to enter on a question of the validity of what are prima facie justiciable matters, it would be a wrong and unjust method of statutory interpretation to attribute to the legislature the intention that a developer could rely on s. 82, sub-s. 3A, so as to get the benefit of a demonstrably void decision, when the full period of two months allowed for questioning the decision was not available for the simple reason that s. 82, sub-s. 3A, did not become operative until after the decision had been made.
Therefore, I would hold that, in the special circumstances of this case, the prosecutors cannot use s. 82, sub-s. 3A, to shield from being questioned in the Courts that which was plainly a void outline planning permission.
The present appeal is from an order of the High Court which granted an absolute order of mandamus commanding the respondent planning authority to grant full planning permission to the developers in implementation of the outline planning permission granted by the Minister for Local Government. Because, for the reasons I have adduced, that decision of the Minister was not given immunity by the expiry of the period specified by s. 82, sub-s. 3A, of the Act of 1963; because the validity of that decision has been questioned by the respondents in these proceedings; and because it now appears that the decision was made ultra vires and is, therefore, a nullity, the grant of an order of mandamus to implement a ministerial decision which was clearly devoid of validity would not be a proper exercise of the Court’s jurisdiction.
It is only fair to point out that the attention of the judge in the High Court was not drawn to the fact that sub-s. 3A of s. 82 did not come into operation in time to allow the respondents, or any other interested parties, an opportunity to avail themselves of the full period of two months prescribed for questioning the ministerial permission. Maxwell on The Interpretation of Statutes (12th ed. at p. 215) puts the position correctly when the author says that statutes “. . . are construed as operating only in cases or on facts which come into existence after the statutes were passed” [or, I would add, “have come into operation”] “unless a retrospective effect is clearly intended.” Had the application of that principle to the facts of this case been drawn to the judge’s notice, I feel the order and judgment under appeal would have been different.
Finally, I should deal with the submission of counsel for the prosecutors that, because the respondents did not within “the appropriate period” deal with the application to implement the outline permission granted by the Minister, that application should be deemed to have been granted under s. 26, sub-s. 4, of the Act of 1963. The short answer to that submission is that permission by default under sub-s. 4 of s. 26 (even if the application were made in compliance with the relevant regulations) cannot be held to have been given if it would contravene the provisions of s. 26 when read as a whole. Here such permission undoubtedly would contravene those provisions particularly those contained in sub-s. 3 of section 26. An order of mandamus in a case such as this is discretionary, and it would be a wrongful exercise of the Court’s discretion to issue such an order when its effect would be to violate both the spirit and the letter of the statute.
I would allow this appeal and discharge the order of the High Court.
Hederman J.
I agree with the judgment which has been given by Mr. Justice Walsh.
The State (Tern Houses) v. An Bord Pleanala
Outline PP
[1985] IR 727
Barron J.
11th July 1985
In 1975 the prosecutor applied to Dublin County Council for an outline permission for a housing development on a site at Ballyowen, Lucan, Co. Dublin. This permission was refused on the 19th March, 1975, and the prosecutors appealed to the Minister for Local Government. He decided on the 19th January, 1977, to grant such permission subject to three conditions. These conditions were as follows:
“1. The development shall be confined to that part of the site zoned for residential development on the detailed action area plan approved by the planning authority for the area of which the site forms a part.
2. Development shall not be commenced until such time as adequate public sewerage facilities are available to serve the area of which the site forms a part.
3. The developers should pay a sum of money to the Dublin County Council as a contribution towards the said Council’s expenditure on the provision of a public water supply and piped sewerage facilities in the area. The amount to be paid and the time and method of payment shall be agreed between the developers and the said Council before the development is commenced, or, failing agreement, shall be as determined by the Minister for Local Government.”
In 1978 the prosecutor applied for an approval for its housing development on the site. On the 12th May, 1978, Dublin County Council refused such approval. An appeal was taken to the respondent and on the 18th June, 1980, the approval was refused upon the grounds (1) that the proposed development was premature and (2) that the proposed layout was considered to be unsatisfactory. The reasons given in relation to the first ground were as follows:
“1. The proposed development would be premature because:
(a) Preparation of an action plan for the area has not yet been completed and the development could not be said to accord with it as required by the first condition of the outline permission granted by the Minister for Local Government on the 19th January, 1977.
(b) Development of other lands in the vicinity, and particularly the provision of a new local distributor road system, has not progressed sufficiently to enable the development of the land to proceed without creating serious traffic hazard on the present inadequate and heavily-trafficked road fronting the site.”
In 1981 the prosecutor made a further application for an approval for its housing development on the site. On the 5th January, 1982, Dublin County Council decided to grant the approval subject to certain conditions. The prosecutor objected to the conditions insofar as they related to the need for new local distributor roads and appealed to the respondent. The respondent on the 20th April, 1983, refused the approval on the grounds set out in the schedule which were as follows:
“The outline permission to which this application for approval relates effectively requires that the development shall be in accordance with the detailed action area plan approved by the planning authority for the area of which the site forms a part so as to ensure that the development of the land is properly co-ordinated with the development of other land in the vicinity on the basis of an overall plan. In the absence of an approved action area plan providing for a co-ordinated programme of phased road improvements and in the absence of any proposals by the developers to assist in the overcoming of the defects in the road system, the development would be premature and would result in the creation of a serious traffic hazard on the present inadequate and heavily-trafficked road fronting the site.”
Meanwhile the prosecutor had on the 27th January, 1982, applied to the County Council for an approval for a development of 496 houses together with ancillary site works. On the same date the prosecutor also lodged an application for full planning permission in respect of the said development of 496 houses and ancillary works which was in identical terms to the application for the approval. At this date, the outline permission had been extended by the Dublin County Council on the 15th September, 1981, so as to expire on the 19th October, 1985. On the 26th March, 1982, Dublin County Council decided to grant the approval sought subject to 32 conditions and also decided to grant the full permission sought subject to the same 32 conditions. The conditions imposed by Dublin County Council included, inter alia, the following:(17) That no housing development take place on foot of this permission until such time as the new local distributor road has been constructed from the existing Newlands Fonthill Road to the access to the site at Earlsfort Road and is available for use by the applicant. (19) That no housing development take place on foot of this permission until such time as the local distributor road across the southern boundary of the site has been constructed from Earlsfort Road to the western limit of the”applicant’s property.”
In addition, condition 18 required a financial contribution of £1,200 per house towards the provision of a satisfactory road network in the area.
Both decisions of the Dublin County Council were appealed to the respondent. On the 7th March, 1985, the respondent refused the approval on the following ground:
“The proposed development would be premature and would result in the creation of a serious traffic hazard on the present inadequate and heavily-trafficked road fronting the site.”
On the same date the respondent granted permission for the construction of the said 496 houses and site works subject to 15 conditions. These conditions included conditions to like effect to those to which I have referred as being contained in the permission granted by Dublin County Council in relation to the construction of new local distributor roads and the requirement that the prosecutor should make a financial contribution towards the cost thereof.
Following the decisions of Dublin County Council in respect of the two applications made on the 27th January, 1982, the prosecutor on the 25th August, 1982, made two further applications, one for an approval and one for a full planning permission in respect of the site. These were substantially the same as the applications made on the 27th January, 1982, and were identical to each other. The decision of the Dublin County Council in respect of both applications was made on the 22nd October, 1982, and was a decision to grant both applications subject to 32 conditions which included conditions of the nature already referred to and to which the prosecutor made objection. Appeals against both decisions were made to the respondent which gave its decision on the 7th March, 1985. The decision in relation to the application for approval was in identical terms to that of the decision of the respondent in relation to the application for approval made to the Dublin County Council on the 27th January, 1982, while its decision in relation to the second application for full planning permission was similar to the decision given by it in relation to the application for full planning permission made to Dublin County Council on the 27th January, 1982 save that it imposed 14 conditions and not 15.
The prosecutor applied for and obtained on the 25th March, 1985, a conditional order to quash the decisions of the respondent on the appeals relating to applications for approval based upon the outline permission upon the grounds that it was ultra vires the powers of the respondent to disallow the said appeals. The respondent has shown cause against the conditional order and the matter now comes before the court to have the conditional order made absolute notwithstanding the cause shown.
The prosecutor’s case is simply put. It is that the outline permission sets the parameters within which the planning authority must consider the application for an approval and that it is not open to the planning authority at the approval stage to reopen matter which has already been permitted under the general terms of the outline permission. Counsel relies upon the judgment of Mr. Justice Barrington in The State (Pine Valley) v. Dublin County Council [1984] I.R. 407 as followed by Miss Justice Carroll in The State (Kenny) v. An Bord Pleanala , (Unreported, High Court 23rd February, 1984) and as approved by the Supreme Court in the same case (Unreported, 20th December, 1984). Counsel submits that, as the outline permission contained a condition relating to the need for sewerage facilities, but no reference to the need for the provision of adequate public roads, it was not open to the County Council or the respondent on an appeal from that body upon an application for an approval based on the outline permission to impose a condition in relation to public roads. By doing so it was submitted that the respondent was going outside the parameters of the outline permission. Counsel submitted that accordingly the respondent had no power to refuse an approval and that the matter should be remitted to the respondent to grant the approval without reference to conditions relating to the public road system.
The respondent accepts that it is bound by the parameters of the outline permission but submits that it has not gone outside such parameters. It further submits that the present application is to avoid the condition requiring a financial contribution from the prosecutor in respect of the public road system adjoining the site and that accordingly it should be denied the relief sought. If the conditional order is made absolute then it also submits that the matter should not be remitted to the respondent to determine the appeals but that the prosecutor should be left to make a fresh application for an approval to the County Council.
It seems to me that the essential question in the present case relates to the powers of the planning authority and of the respondent, in the event of an appeal, upon an application for a planning approval. If the applicant has a right to have his application determined upon a particular basis, the fact that he may have a motive for insisting on such right should not deprive him of it. The passage in the judgment of O’Higgins C.J. in The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381 relied upon by counsel for the respondent does not in my view support the contention made on behalf of the respondent that motive should be considered. O’Higgins C.J. was not referring to a case like the present, but one where an applicant chose one course of action rather than another in order “to obtain a benefit not contemplated by the planning code.” Admittedly the mass of applications made by the prosecutor has resulted in the existence of a full planning permission but no planning approval. Nevertheless, so long as the planning code permits the multiplicity of applications, the developer cannot be prevented from pursuing each application to the limit of his legal rights.
An outline permission or, more pedantically, a permission granted upon an outline application, is a permission indicating that the particular development is acceptable in principle. In his judgment in The State (Pine Valley) v. Dublin County Council [1984] I.R. 40, Mr. Justice Barrington makes this quite clear. In the passages cited by Miss Justice Carroll in The State (Kenny) v. An Bord Pleanala (Unreported, High Court, 23rd February, 1984) he says at p. 413 of the report:
“. . . When the developer applies subsequently for an approval the planning authority is only concerned with the details of the means whereby the developer proposes to complete the development that has been approved in principle by the planning authority.”
and at p. 415:
“. . . It is not open to that [the planning] authority to reconsider whether the development is acceptable in principle.”
This does not mean that in all circumstances the planning authority must grant an approval based on such outline permission. The absolute nature of an outline permission, as contended for by counsel for the prosecutor, has been qualified by Mr. Justice McCarthy in The State (Kenny)v. An Bord Pleanala . While approving the general principle as contained in the judgment of Mr. Justice Barrington in The State (Pine Valley Developments)v. Dublin County Council he continued at pp. 6-7 of the unreported judgement:
“It may be that different considerations would apply if in the interval between the grant of outline permission and the application for approval there has been a significant change of circumstances in the area of the planning authority, relevant to the application for approval.”
An application for an approval is made under s. 26 of the Local
Government (Planning and Development) Act, 1963. Section 26, sub-s. 1 is as follows:
“(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 thereof), 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 subsection (2) of this section.”
No distinction is drawn in the sub-section between an application for outline permission, an application for full permission or an application for an approval. The powers of the planning authority are the same in each case. Primary consideration is to be given to the proper planning and development of the area of the authority. The only distinction is that on an application for an approval the planning authority must accept, subject to the limitation indicated by Mr. Justice McCarthy, that the proposed development is to be allowed. When the planning authority considers what, if any, conditions should be imposed, there is nothing in the sub-section to support the prosecutor’s contention that because any particular condition might have been imposed when that authority granted the outline permission that such condition cannot be imposed when the same authority grants an approval based upon such outline permission. In my view, the nature of any conditions imposed depends not upon the nature of the application but upon the circumstances prevailing at the date when the application is considered. Accordingly, if there was a conflict between the immediate implementation of an outline permission and the proper planning and development of the area, it is the latter which must prevail. In such circumstances, it is fully within the powers of the planning authority and of the respondent on appeal to refuse the approval rather than to grant it subject to a condition that it cannot be implemented for the time being. In my view that is the position here. The proper planning and development of the area requires that the development should be delayed. In such circumstances, it is proper for the respondent to refuse the approval rather than to grant it subject to conditions as to the date of commencement of the development.
In my view, the respondent has acted intra vires. Accordingly, I will allow the cause shown and discharge the conditional order. Had I disallowed the cause shown, it seems to me that it would have been proper to remit the matter to the respondent to proceed anew to determine the appeals. This was so decided by Finlay P. as he then was in The State (Genport Ltd.) v. An Bord Pleanala [1983] I.L.R.M. 12. I do accept the respondent’s submission that the entire application should proceed de novo.
West Wood Club Ltd v An Bord Pleanála
[2010] IEHC 16
JUDGMENT of Mr. Justice Hedigan delivered on the 26th of January 2010
1. These proceedings concern an application for leave to apply by way of judicial review pursuant to s.50A of the Planning and Development Act 2000 (“the Act of 2000”), as amended by the Planning and Development (Strategic Infrastructure) Act 2006. It was agreed by the parties that the hearing of this matter should proceed by way of a “telescoped hearing”, that is, on the basis of the application for leave and the substantive grounds being heard together.
2. The applicant is a limited liability company which owns a sports and leisure centre at Clontarf Road, Fairview, Dublin 3. Its facilities include a 50 meter swimming pool, seven indoor tennis courts, three outdoor tennis courts, an indoor basketball court, a 24,000 square foot gym, dance studios, an indoor running track, a climbing wall, child care facilities, a spa, a sports shop, a café and a restaurant.
3. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976 charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2006.
4. The notice party is the local authority with responsibility for the administrative area of the City of Dublin. One of its functions is the control, registration and decision-making for new developments, in particular, through granting or refusing applications for planning permission.
Planning History
5. On the 7th August, 1998, the applicant was granted planning permission by Dublin Corporation, the predecessor to the notice party, for the development of lands adjoining Fairview Park. Provision was made in the plans, which were approved, for, inter alia, a restaurant use. On the 23rd December, 1999, the applicant was granted planning permission in respect of certain alterations to the original grant of permission.
6. The applicant subsequently obtained an intoxicating liquor licence from the District Court. In 2002 the applicant began to operate a bar/disco on the premises called “Bar Code”. The notice party took exception to this, primarily on the grounds of the scale of the bar usage. It wrote to the applicant on the 22nd January, 2003, on the 13th February, 2003, and again on the 10th June, 2003, alleging that part of the building was unauthorized for use as a public bar.
7. On the 17th July, 2003, the applicant applied for a declaration pursuant to s.5 of Act of 2000, on a without prejudice basis, as to whether certain matters constituted exempted development including “the use of that portion of the premises referred to as the ‘leisure centre’ for use as a leisure centre together with the ancillary use for the sale of intoxicating liquor.” Section 5 of the Act of 2000 enables any person to request in writing a declaration from the relevant planning authority as to whether or not a development is or is not exempted development within the meaning of the Act of 2000.
8. The notice party determined that the development was not exempted development in its decision dated the 21st August, 2003. On appeal, the respondent also determined that the bar usage was not exempted development in a decision dated the 30th January, 2004, and that the use of part of the leisure area for the sale of intoxicating liquor constituted a material change of use, having regard to its scale and the provision of a separate entrance.
9. Enforcement proceedings were commenced by the notice party against the applicant in May 2005 pursuant to s.160 of the Act of 2000 on the grounds that the bar usage was unauthorized development. Those proceedings were adjourned generally on the 17th July, 2007, upon the applicant agreeing to submit an application for retention permission, without prejudice to its position that the development was unauthorized.
10. The applicant then made two separate applications for retention permission on the 5th December, 2007 to the notice party. One of the applications, referred to by the applicant as the “use application”, was an application for retention of a change of ancillary use of part of the established leisure centre for the sale of intoxicating liquor together with extensions and facilities related to this change of use. The other application, referred to by the applicant as the “works application”, was for the retention of various other works that had been carried out on the site including various extensions, alterations to approved elevations, retractable awning, signage, portacabins, metal shipping containers, a water feature, a climbing wall and car parking.
11. The “use application” was refused by the notice party in its entirety in a decision dated the 2nd February, 2008. Some of the works as detailed in the “works application” were granted retention permission by it and others were refused.
12. The applicant appealed the decisions of the notice party to the respondent on the 1st March, 2008. The respondent received various submissions/observations from third parties, which were not circulated to the applicant. In decisions dated the 12th September, 2008, the respondent refused retention permission in respect of the “use application” and only granted retention permission in respect of some of the works in the “works application” i.e. north-westward extensions of 243 square meters; offices and storage on the second floor; an increase in roof level from one to three storeys to provide for a climbing wall and one portacabin and metal shipping container.
13. It is these decisions of the respondent of the 12th September, 2008, that the applicant seeks to challenge in these proceedings. It does so by reference to eight principal grounds, which will be dealt with below. The reasons and considerations for the respondent’s decision in respect of the “use application” were stated in the decision to be as follows:-
“1. The proposed retention of use of part of the previously approved Sports Leisure Club complex within the West Wood Leisure Centre for the sale of alcoholic liquor (indicated as ‘Bar Code’), by reason of its scale, separate entrances and operational hours, is not considered subservient to the primary use of the site as a sports and leisure centre. The retention of ‘Bar Code’ a licensed premises, of the scale proposed, for the sale and consumption of alcoholic liquor is a ‘non permissible use’ as set out in paragraph 14.4.9 and 14.5.0 of the current Dublin City Development Plan. The retention of use would, therefore, materially contravene the “Z9” zoning objective set out in the development plan, which seeks to preserve, provide and improve recreational amenities and open space’ and would, therefore, be contrary to the proper planning and sustainable development of the area.
2. On the basis of the planning history of the site and the submissions made in connection with the application and the appeal it appears to the Board that the proposed development relates to a site, the use of which is unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The retention of works associated with the facility as a licensed premises would facilitate the consolidation and intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to consider the grant of a permission for the proposed development in such circumstances.”
14. The reasons and considerations with regard to the “works application” are as follows:-
“1. On the basis of the planning history of the site and the submissions made in connection with the application and the appeal, it appears to the Board that the proposed development relates to a site the use of which is unauthorised for use as a licensed premises, Bar Code, for the sale and consumption of alcoholic liquor. The retention of works associated with this facility as a licensed premises would facilitate the consolidation and intensification of this unauthorised use. Accordingly, it is considered that it would be inappropriate for the Board to consider the grant of permission for this element of the development in such circumstances.
2. It is considered that the Bram Stoker Museum/Dracula Experience is an intensification of use on a severely restricted site, would constitute overdevelopment of the site by reason of access arrangements for this element of the development proposed for retention and would, therefore, be contrary to the proper planning and sustainable development of the area.
3. The use of portacabins and shipping containers as a permanent/semi-permanent storage facility would constitute overdevelopment of the site and would be unacceptable for visual amenity and health and safety reasons. This element of the development proposed for retention would, therefore, seriously injure the visual amenities of the area and be contrary to the proper planning and sustainable development of the area.
4. The vehicle access and car parking proposed for retention would cause traffic conflicts, would constitute substandard development with regard to adequate aisle widths and pedestrian linkages, would provide inadequate segregation for cars and pedestrians and would endanger public safety by reason of obstruction of road users and pedestrians. Furthermore, the proposed retention of car parking at the existing scale, which is additional to the original development on the site, would constitute significant overdevelopment of the site and contravene Dublin City Council Policy T2 to encourage modal shift. The retention of this element of the proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.
5. The signage proposed for retention relates to an unauthorised and non-conforming use ‘Bar Code’ and, furthermore, it is considered that the signs proposed for retention would create visual clutter and are excessive in size and would be contrary to the Dublin City Development Plan 2005-2011. This element of the development proposed for retention would, therefore, seriously injure the visual amenities of the area and be contrary to the proper planning and sustainable development of the area.
6. The development proposed for retention would, when taken in conjunction with existing permitted development, constitute overdevelopment of this site and would be contrary to zoning objective Z9 ‘to protect, provide and improve recreation amenity and open space.’ The retention of this element of the development would, therefore, be contrary to the proper planning and sustainable development of the area.”
15. The applicant seeks orders of certiorari quashing the impugned decisions of the respondent, various declaratory reliefs and an order remitting the determination of the appeal to the respondent with a direction to the respondent to consider and determine the said appeal in accordance with law.
Leave requirement
16. Section 50A of the Act of 2000, as amended by the Planning and Development (Strategic Infrastructure) Act 2006, provides that leave shall not be granted to an applicant unless this Court is satisfied that there are “substantial grounds” for contending that the decision of the respondent is invalid or ought to be quashed and that the applicant has a “substantial interest” in the matter.
17. The meaning of the phrase “substantial grounds” was explored by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125:-
“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are ‘substantial’. A ground that does not stand any chance of being sustained (for example, where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the Applicant is confined in this argument at the next stage to those which I believe may have some merit.”
18. The above passage was approved by the Supreme Court in In Re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 and applied by this Court (McKechnie J.) in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 and (Kelly J.) in Mulholland v. Kinsella (No.2) [2006] 1 IR 453.
19. It was not disputed by the respondent that the applicant in this matter has a “substantial interest” in the matter. What remains at issue is whether the applicant has raised “substantial grounds” in these proceedings.
(i) Preliminary Point
20. The applicant raises a preliminary point as to the propriety of a senior executive officer at the office of the respondent, Mr. Michael Donlon, who was not a member of the respondent’s board and who did not attend at board meetings, swearing the respondent’s verifying affidavit to the statement of opposition.
21. Mr. Collins S.C., for the applicant, submitted that Mr. Donlon was not an appropriate person to swear a verifying affidavit as he did not have personal knowledge of the matters contained therein. He cited the Supreme Court decision of Probets v. Glackin [1993] 3 I.R. 134 which, he submitted, was authority for the proposition that an affidavit grounding an application for judicial review should be sworn by the applicant. He contended that, in the same way, a verifying affidavit should be sworn by a person who can verify facts in light of his or her own knowledge. He argued that members of the Board would clearly be in a better position to swear a verifying affidavit than Mr. Donlon, whose affidavit, in his submission, included several hearsay statements. He also relied on Gavin v. The Criminal Injuries Compensation Tribunal [1997] 3 I.R. 132 in which Carroll J. held that the respondent in that case was required to speak on its own behalf and that it was not acceptable for the secretary of the respondent to say what the respondent thought and what its reasons were.
22. Ms. Butler S.C., for the respondent, noted that there was no obligation on a respondent to file a statement of opposition or a verifying affidavit in the context of a leave application. She submitted that the intended statement of opposition filed by the respondent set out, in full, the material which was before it and that the affidavit of Mr. Donlon exhibited relevant documentation. She distinguished the case of Probets v. Glackin [1993] 3 I.R. 134 on the grounds that the applicant in that case the applicant’s solicitor swore the affidavit grounding the application for judicial review and the applicant sought to rely on it so as to confer an evidential status on the statutory declaration of the applicant exhibited therein. Mr. Donlon, she observed, had not exhibited statutory declarations of other members of the Board. The complaint in Gavin v. The Criminal Injuries Compensation Tribunal [1997] 3 I.R. 132 was not analogous, she further submitted, in that, the affidavit of the secretary had set out reasons for the decision of the tribunal that had not been set out by the tribunal itself. She referred also to The Village Residents Association Limited v. An Bord Pleanála [2001] 1 I.R. 441 where a verifying affidavit was sworn by a person who was not member of the Board but where Laffoy J. found that as the relevant documentation was before the Court, it enabled her to determine the issues which arose.
23. I am satisfied that the cases of Probets v. Glackin [1993] 3 I.R. 134 and Gavin v. The Criminal Injuries Compensation Tribunal [1997] 3 I.R. 132 are distinguishable for the reasons outlined above by Ms. Butler and do not assist the applicant’s contention that the respondent’s verifying affidavit should have been sworn by a member of the Board, in circumstances where, as in The Village Residents Association Limited v. An Bord Pleanála [2001] 1 I.R. 441, the entirety of the material upon which the respondent reached its decision is referred to in the statement of opposition (at para. 27) and where Mr. Donlon exhibited relevant documentation in his affidavit including copies of the original grant of planning permission and the amendments made to it in 1999; copies of the Inspector’s Report Discharge Form and the s.131 of the Act of 2000 assessment forms; a copy of the Board’s planning inspector’s report and a copy of the Board’s order. The basis upon which the Board made its decisions that are impugned in these proceedings is clear. To stipulate that an individual member of the Board swear an affidavit would be superfluous in such circumstances. The objection of the applicant on this point is, therefore, dismissed.
(ii) The respondent proceeded on a false assumption.
24. The first substantive ground raised by the applicant is that the respondent allegedly proceeded to determine the applications for retention permission on the false assumption that no alcohol could be served on the premises at all, in disregard of the permitted use as a leisure centre with ancillary restaurant usage.
25. Mr. Collins argued that there was a basic obligation in any application for planning permission that the respondent would consider the actual permitted use and then go on to consider the proposed use. He further argued that the express statement of the respondent in the decisions that “the proposed development relates to a site, the use of which is unauthorised for use as a licenced premises, Bar Code, for the sale and consumption of alcoholic liquor” disregarded the permitted use of the premises as a leisure centre and its ancillary use. This erroneous assumption, he submitted, fettered the discretion of the respondent.
26. Ms. Butler argued that no user for the sale of alcohol had ever been advanced by the applicant other than the development of a bar/disco in the form and scale presented by it and that was what was rejected. The respondent, she contended, had never been asked to decide on the issue of whether alcohol could be served in the restaurant or in a members’ bar and she further contended that it was always within the contemplation of the respondent that there would be an ancillary restaurant use to the leisure centre use. The decision of the respondent in the retention applications did not, she added, exclude this possibility. She characterised the effect of the respondent’s decision so as to exclude a public house user on the basis that it was not ancillary or consistent with the zoning objectives for the site.
27. Having regard to the applicant’s arguments, I consider it may well be that the threshold required for leave has been reached. However, it is quite clear to the Court, from the evidence on affidavit and the submissions made to it, that what the applicant sought to achieve was the retention of the substantial bar/disco it operates and not the relatively limited bar use that might be ancillary to the sports club. The purpose of such an extensive use, i.e. as a means of providing financial support for the leisure centre, is obvious and the applicant made no secret of what it sought and why. Its independence from the leisure centre facility is clear, in that, it has a separate entrance and has different opening hours, opening much later than the rest of the facility. In addition, it is open to the general public, as opposed to members only. The independence of “Bar Code” is evident from the description of its use as being “complementary” to that of the leisure centre, as stated at para.4.3 of the submission of Mr. Kieran O’Malley, town planning consultant, of Kieran O’Malley & Co. Ltd, to the respondent dated the 5th March 2008.
28. I am satisfied that the applicant was not interested in anything else or in anything less than what it sought in its application for retention permission, that is, a bar/disco serving alcohol to the general public, open late at night. Although it was prepared to agree a slight reduction in the limit for the use of 1100 persons, as opposed to 1300 persons, as it proposed to the respondent on appeal, a limited bar service ancillary to the leisure centre was of no interest to the applicant. The respondent was not asked to consider such a proposition. It determined the application as presented to it by the applicant only. The substance of the applicant’s complaint that the respondent fettered its discretion by not acknowledging that any alcohol could be served on the premises is not supported by the evidence. Thus, although I grant leave albeit with some doubt, no relief should be granted on this ground.
(iii) The respondent relied on its previous determination under s.5 of the Act of 2000.
29. The applicant also makes the case that the respondent fettered its discretion or pre-judged the appeals by relying on its previous determination in respect of the s.5 declaration and that it did not deal with the applications for retention permissions on their own merits. The applicant complains that the respondent considered itself bound by the terms of its 2004 declaration and that it was unaware that this approach would be taken and so did not obtain an opportunity to make any arguments in this regard.
30. Mr. Collins submitted that the respondent erred in law. He cited the judgment of Keane J. in Carrigaline Community Television Co. Ltd. v. Minister for Transport [1997] 1 I.L.R.M. 241 which refers to a number of U.K. decisions dealing with the duty of public authorities with a statutory discretion to listen to each application. He also highlighted the pronouncements of the Supreme Court on the issue of pre-judgment in O’Callaghan v. Mahon [2008] 2 IR 514 and Radio One Limerick Ltd. v. I.R.T.C. [1997] 2 I.R. 291. He submitted that there were considerable differences between the s.5 reference in 2004 and the application for the use retention in 2008 (e.g. specific information was given in the use application as to the proposed occupancy of the club; comparative information was furnished with the use application and the area proposed for the sale of alcohol was smaller in the use application). He argued that the respondent had disregarded the 1997 and 1999 planning permissions in place of the 2004 declaration, in error.
31. Ms. Butler submitted that the inspector’s report in the retention applications demonstrated a comprehensive analysis of whether the use should be granted planning permission on its merits by reference to the proper planning and sustainable development of the area, as is required under s. 34(2) of the Act of 2000, having first determined that the use was not ancillary to the permitted use. She noted that the respondent had agreed with the inspector’s assessment that the proposed development was not in accordance with the proper planning and sustainable development of the area and she contended that the use decision did not start from the proposition that the issue was already decided. In her submission the respondent considered the application and rejected it on the merits. Moreover, the s.5 declaration formed part of the planning history of the site to which the respondent is permitted to have regard when determining an appeal, as was accepted by Murphy J. in Fitzgerald v. An Bord Pleanála (Unreported, High Court, 11th November, 2005).
32. I am satisfied that the applicant has satisfied the requirement of substantial grounds on this point. Dealing with this ground on a substantive basis; it is clear from the terms of the reasons given by the respondent to refuse the works application, quoted at para.13 above, that the respondent first addressed the question of whether the bar usage was ancillary or not. It did not start from the proposition that the issue was already decided. In paragraph 1 it outlined the objective reasons as to why it was not an ancillary use, in its view, i.e. “scale, separate entrances and operational hours”. I note that in the s.5 declaration the respondent did not find that the use was not ancillary based on its operational hours. The reason given in that declaration as to why the “Bar Code” use constituted a material change of use and thus was not exempted development was “its scale and the provision of a separate entrance”.
33. The reasons for refusing retention permission go on to outline that the respondent considered that the proposed use “of the scale proposed” was a non-permissible use as per paragraphs 14.4.9 and 14.5.0 of the current Dublin City Development Plan (“the development plan”) and materially contravened the “Z9” zoning objective of that plan, the objective being “to preserve, provide and improve recreational amenities and open space.” The reasons also acknowledge that the respondent took the planning history of the site into account together with the submissions made to it in reaching its conclusion. In addition, the report of the inspector notes the previous s.5 declaration and its effect but then goes on to state that the main issues in the appeal “is whether the principle of ‘Bar Code’ … is acceptable in terms of the proper planning and sustainable development of the area.” In determining that issue she assessed “Bar Code” as against the development plan and the impact upon the character of the area. Therefore, the evidence is such that the respondent embarked upon a new and distinct analysis in the context of the application for retention permission by reference to the factors identified in s.34 (2) of the Act of 2000, as opposed to determining whether the use constituted development or not under s.5 of the Act of 2000.
34. It is also to be observed that the s.5 declaration was never challenged by the applicant. It formed part of the planning history of the site, as mandated by s. 5(5) of the Act of 2000. It seems to me that the respondent was correct to have regard to it when determining the appeals before it. Indeed it was inevitable that the s.5 declaration would be revisited in circumstances where the applicants themselves had formulated their application for retention of an existing use in terms of an ancillary or complementary use to the leisure centre. It was proper that the respondent had regard to a relevant planning decision which it made only a relatively short time before it dealt with the applicant’s appeal 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 as held by this Court in Fitzgerald v. An Bord Pleanála (Unreported, High Court, 11th November, 2005). In my view, for the reasons outlined, it is clear the respondent did not in fact fetter its discretion as contended by the applicant and therefore the relief sought should not be granted.
(iv) There was a breach of fair procedures on the part of the respondent.
35. The next ground to be advanced was that the respondent breached natural justice or fair procedures for the following reasons: i) by failing to inform the applicant of the approach it was going to take in respect of the s.5 declaration; ii) by failing to circulate third party submissions to the applicant, which made allegations of corruption against it, thus depriving it of an opportunity to comment on them; iii) by failing to have regard to the comparative information from St. Vincent’s G.A.A. club and city centre licensed premises, as included in the submissions of Mr. Kieran O’Malley of Kieran O’Malley & Co. Ltd., Town Planning Consultants, when reaching its decision. Mr. Collins relied on McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 in arguing that the decisions of the respondent should be set aside on this ground. In that case the respondent was held not to have acted in accordance with fair procedures when it concluded, despite the known willingness of the applicant to supply further evidence if so required, that insufficient evidence had been adduced on an issue of fact and law that hitherto had not been disclosed to him.
36. In response to the allegation that there was a failure by the respondent to give notice to the applicant of its intention to consider its approach regarding the s.5 declaration, Ms. Butler pointed out that the applicant was aware that the s.5 application had been determined against it and made submissions with regard to it. She referred to Stack v. An Bord Pleanála (Unreported, High Court, Ó Caoimh J., 7th March, 2003) which concerned inter alia the reliance by the respondent on a previous decision made by it in respect of an adjacent site. She noted that Ó Caoimh J. held that the previous decision was a matter of which knowledge must at least be imputed to the applicants as it formed a matter of public record and that there was no breach of natural justice in relying on it. She noted that this case involved a decision on the same site of which the applicant must have been aware. Ms. Butler submitted that the issues raised by the third parties in their submissions had previously been raised in the submissions to the notice party, of which the applicant was aware. As to the failure to have regard to the comparative information, Ms. Butler disputed the relevancy of the comparators furnished by the applicant. She submitted that the procedure adopted by the respondent conformed to the requirements of fair procedures in the planning context, as set out by Murphy J. in State (Haverty) v. An Bord Pleanála [1987] I.R. 485. She distinguished McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 on the basis that the applicant in the instant case was on notice of the submissions made and did get an opportunity to respond to them and in that case Barron J. appeared to be influenced by the fact that the outcome of the respondent’s decision would be to brand the applicant a liar. She also relied on Evans v. An Bord Pleanála (Unreported, High Court, 7th November, 2003) in support of the proposition that to be circulated submissions must go beyond the original issues raised.
37. The reports of the respondent’s inspector set out the matters which she considered to be of relevance, in identical terms in the two reports as follows:-
“I consider the following observations, in conjunction with the objections summarised in the planner report above, of relevance:-
– Negative impact on residential amenity
– Material contravention of the Development Plan zoning ‘Z9’
– Over development of the site
– The two concurrent planning applications (Reg. Ref. 6467/07 & 6466/07) are deliberately misleading and confusing.
– Traffic hazard
– Set a negative precedent for similar unauthorised development
– The Bar Code use is not ancillary to the leisure club use, due to its size and the nature of the use, which is unrelated to sports & leisure uses.”
38. Considering whether these grounds are sufficient to grant leave; with regard to the argument that the applicant should have been notified as to the fact that the respondent intended to take the s.5 declaration into account, this decision formed part of the planning history of the site and was never appealed. It was a decision well known to all and which the applicants needed no invitation to argue. In any event it was the applicant itself that raised the matter in circumstances where it sought to bring the bar/disco use within the concept of an ancillary or complementary use. In Stack v. An Bord Pleanála (Unreported, Ó Caoimh J., 7th March, 2003) Ó Caoimh J. held as follows at p.21:-
“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(12) 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.”
39. In this case the s.5 declaration related to the same site. I am satisfied that it was legitimately taken into consideration by the respondent when reaching its conclusion. I am satisfied that substantial grounds have not been raised with regard to this aspect of fair procedures.
40. As to the failure to circulate the third party submissions; those submissions, which were forwarded to the respondent, raised no new issues. They were broadly the same as those which were raised against the original application to the notice party. The personal abuse contained within some of the submissions received by the respondent was no doubt very insulting and annoying when discovered. However, it was clearly not of any relevance to that which the respondent was charged with determining, i.e. the planning application. Therefore, the submissions did not require to be circulated unless it was the case that the respondent intended to rely upon them, which it clearly did not in the instant case. The personal characteristics, attributes or character of an applicant are not of relevance in the determination of permission for development and are not stipulated as matters to be regarded under s.34 of the Act of 2000.
41. I am satisfied that McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 may be distinguished. The respondent, in that case, drew an adverse conclusion against the applicant based on a submission received by it by a resident’s group that was not furnished to the applicant. The applicant in the instant case was on notice of the allegations against it, given that similar allegations had been made against it at first instance. In addition, no finding was made against the applicant in the present case in respect of the submissions and its honesty was not impugned by the respondent.
42. However, if it were the case that the submissions so altered the nature of the original application so as to materially change it or go beyond the original issues raised, then the relevant party may have to be notified so as to allow him address the new scenario. See Evans v. An Bord Pleanála (Unreported, High Court, Kearns J., 7th November, 2003).
43. A similar view seems to have been taken by Murphy J. in the State (Haverty) v. An Bord Pleanála [2008] 2 I.L.R.M. 485. In that case the further submissions at issue concerned those submitted by or on behalf of a developer. Although the Court found that on the facts of that case the prosecutrix chairman of a resident’s association along with that association had made a “detailed professional argument” before the planning authority at first instance and the planning board on appeal, it concluded that natural justice did not require that they be permitted to amplify their same arguments in response to the further submissions of the developer’s planning consultant, Murphy J. commented as follows at p.493:-
“To avoid misunderstandings perhaps I should make it clear that I do not accept and I have not accepted any general proposition that An Bord Pleanála could discharge its obligation to an interested party by delivering part only of the appellant’s submission to any person entitled to receive the same. I could imagine cases in which further communications from the developer extended the original submission so radically as to constitute a different or additional case and in that event natural justice might well require An Bord Pleanála to postpone its decision until it had afforded interested parties an opportunity of commenting upon the revised submission. ”
44. I am satisfied that the submissions in question raised no new issues requiring the respondent to circulate them for comment. There is no obligation on the respondent to repeatedly circulate submissions treating of the same matter. I am satisfied therefore that leave should not be granted.
45. As to not taking the comparators of St. Vincent’s GAA Club and city centre public houses into account as referred to in Mr. Toal Ó Muire’s submissions to the notice party, I am satisfied that these are not valid comparators. The differences between “Bar Code” and the bar at the clubhouse at St. Vincent’s GAA Club are so obvious, that the latter was not even pursued as a comparator in the submissions of Mr. Kieran O’Malley to the respondent on appeal. It only featured in the submissions of Mr. Ó Muire to the notice party at first instance. The comparison Mr. O’Malley made in respect of large city centre pubs is also not a relevant comparator to a sports and leisure centre operating in the suburbs of Dublin. Any failure of the respondent to take these comparators into account was therefore in my view justifiable. Substantial grounds not having been demonstrated, I therefore refuse leave in this regard also.
(v) Failure to have proper regard to the Dublin City Development Plan 2005-2011
46. The complaint is also made by the applicant that the respondent failed to have proper regard to the development plan in finding that the retention of the use would constitute a material contravention of the plan and that it failed to take into account that a leisure centre is a permitted use under zoning objectives Z9 of the development plan. Permissible uses in Z9 are outlined as follows:-
“Club house and associated facilities, Municipal golf course, Open space, Public Service installation which would not be detrimental to the amenity of Z9 zoned lands.”
47. Mr. Collins submitted that the respondent erred in law in determining that the use, as formulated in the use application, was in material contravention of the development plan, as the service of alcoholic beverages, in his submission, was an ancillary use to a club house’s leisure centre. He noted that section 14.5.2 of the development plan provided for uses which are open for consideration and he argued that a licenced premises came within these uses, insofar as it was ancillary to a permitted use and that this relevant consideration was disregarded by the respondent. He further argued, in respect of the works application that there was no basis for the respondent’s finding that the application would be contrary to the zoning objective Z9 “to protect provide and improve recreation amenity and open space.” He pointed out that the works included the onsite Bram Stoker Museum/Dracula Experience, which he submitted, was not at variance with the aforementioned zoning objective.
48. Ms. Butler submitted that the interpretation and application of a development plan was clearly a planning question. She cited the recent case of Quinlan v. An Bord Pleanála (Unreported, High Court, 13th May, 2009) where Dunne J. concluded that matters involving planning policy lie properly within the remit of the planning authority and An Bord Pleanála and so long as decisions are made in accordance with law that the courts should not interfere. In any event Ms. Butler contended that the decision regarding the Bram Stoker Museum/Dracula Experience was made by reference to intensification of use and access arrangements and not by reference to the area zoning.
49. I am satisfied that leave should not be granted on this aspect of the applicant’s case for the following reasons; in Quinlan v. An Bord Pleanála (Unreported, High Court, 13th May, 2009) in respect of the jurisdiction of the respondent, Dunne J observed:-
“I am therefore of the view that the determination of the issue of the established use of the property as of the appointed day is a matter which is properly within the domain of the Planning Authority/the Board. In reaching that conclusion, I accept that it is not for the court to consider objectively the evidence and information before the Board and come to its own conclusion. Provided that the Board has reached its decision in accordance with the law there is no basis for interfering with its decision. There is no evidence before me to suggest that the Board took into account any irrelevant or inappropriate matters in the course of its considerations.”
50. I am satisfied that it has not been demonstrated to this Court that there was a failure on the part of the respondent to have proper regard to the development plan or that the respondent proceeded on a mistake of law or an egregious error on the facts in this case. This is evident from the terms of the inspector’s report and the decision as adopted by the respondent. In particular, with respect to the Bram Stoker Museum/Dracula Experience decision, I am satisfied that there was no error of law. Although such a museum came within the zoning objective of the site, there was a refusal of the retention permission for it by reason of the intensification of the site and inadequate access to it, as is clear from the terms of point 2 of the decision, to be found above at paragraph 14.
(vi) Failure to give adequate reasons
51. It was further submitted that the respondent failed in its duty to give adequate reasons for its decision, in such a manner that the applicant could not ascertain what would be acceptable to it in the future. The cases of Mulholland v. An Bord Pleanála (No.2) [2006] 1 IR 453; Deerland Construction Ltd. v. Agricultural Licences Appeals Board [2008] IEHC 289; South Bucks District Council & Anor. v. Porter [2004] UKHL 33 and Sweetman v. An Bord Pleanála [2007] IEHC 153 were relied upon by the applicant in this regard. Mr. Collins submitted that Stack v. An Bord Pleanála (Unreported, Ó Caoimh J., 7th March, 2003) was not a correct statement of the law in this jurisdiction.
52. Ms. Butler submitted that the level of reasons required to be given by the respondent was not one which was to a high standard. She cited Dunne & Anor. v. An Bord Pleanála (Unreported, High Court McGovern J., 14th December, 2006) and Grealish v. An Bord Pleanála [2006] IEHC 310 in support of this contention. She further submitted that the decision of the respondent complied with this standard, given that it had addressed the central issues in its decision. The law in this jurisdiction, she submitted, was not such that a statement of reasons must identify what development is likely to be acceptable on the site in future, rather the reasons must demonstrate that the decision-maker adequately addressed his mind to the substantive issues and must be sufficient to enable a person to consider an appeal or judicially review the decision as per Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2006] 1 IR 453. She noted that the only support for the South Bucks position was the obiter comments of Birmingham J. in Sweetman v. An Bord Pleanála [2007] IEHC 153 but that Ó Caoimh J. in Stack v. An Bord Pleanála (Unreported, Ó Caoimh J., 7th March, 2003) had expressly rejected such an approach, the point having been fully argued between the parties. She argued that if the respondent was duty bound to give reasons as to the type of development that might be acceptable in the future it would fetter the discretion of the respondent into the future and would deprive third parties of their right to make submissions as to the proposed development.
53. The applicant has, in my view, demonstrated substantial grounds on this point and leave should accordingly be granted. Addressing the issue substantively; the statutory duty to give reasons is enshrined in s. 34(10) of the Act of 2000 as follows:-
“(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 the subsection.
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or refuse permission is different, in relation to the granting or refusal of permission from the recommendation in-
(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board, a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.”
54. In Mulholland v. An Bord Pleanála [2006] 1 IR 453 Kelly J. found that although the legislature had introduced a statutory duty to give reasons in the Act of 2000, the existing jurisprudence regarding what is required for reasons to be considered as adequate at law continued to apply. In this regard he referred to the cases of O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 and State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35. Murphy J. in O’Donoghue summarised the duty to give reasons as follows at p.757:-
“…it is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review it 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 …”
Finlay P. in the State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35 earlier found that the purpose of the requirement for reasons was:-
“…to give … [to an] applicant such information as necessary and appropriate for him, firstly, to consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and secondly to enable him to arm himself for the hearing of such an appeal.”
Kelly J. , having reviewed the statutory framework and relevant jurisprudence outlined what is required to comply with the duty to state considerations and reasons as follows at pp.464-465:-
“The statement of considerations must therefore be sufficient to:-
(1) give the 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 his mind adequately to the issues which it has considered or is obliged to consider.
(4) enable the courts to review the decision.”
55. McGovern J. in Dunne & Anor v. An Bord Pleanála [2006] I.E.H.C. 4000 had regard to inter alia the above authorities when assessing the adequacy of the reasons given in the case before him and he also had regard to the following passage from the judgment of Finlay C.J. in O’Keefe v. An Bord Pleanála [1993] I.R. 39 at p.76:-
“What must be looked at is what an intelligent person who has taken part in the appeal or has been appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons …”
56. In Grealish v. An Bord Pleanála [2006] IEHC 310 O’Neill J. described the duty to give reasons as follows:-
“As set out above the legal obligation resting on the respondents to explain their decisions is a very light one, one could even say almost minimal. It is well settled that they do not have to give a discursive judgment. They do however, as set out in the judgment of Kelly J., in Mulholland’s case have to provide sufficient information to enable somebody in the position of the applicant in this case to consider whether he has a reasonable chance in succeeding in judicially reviewing the decision; can arm himself for such a review; can know if the respondent has directed its mind adequately to the issues it had to consider; and finally give sufficient information to enable the court to review the decision. Insofar as two of the main elements of the decision in this case are concerned i.e. reasons and considerations based on scale and non integration, the decision fails on every aspect of the foregoing test. There is literally nothing there to explain why a different conclusion is reached on these issues to that in 1990 or 1997.”
57. In the recent case of Sweetman v. An Board Pleanála (Unreported, High Court, 9th October, 2009), Birmingham J. refused leave to the applicant on the ground that there was a failure on the part of the respondent to give adequate reasons in circumstances the decision of the respondent left “no room for doubt as to how and why the Board came to the decision that it did.” He expressed the view that the courts in this jurisdiction take a similar approach to the courts in England as to the adequacy of reasons, referring to the judgment of Lord Brown of Eaton-Under Heywood in South Bucks District Council v. Porter (No.2) [2004] 1 WLR 1953 in particular at p.27:-
“Overall, the approach taken in England seems very similar. The observations of Lord Brown of Eaton-under-Heywood in South Bucks District Council v. Porter (No.2) [2004] 1 WLR 1953 which offers an overview of how the situation is viewed in England and Wales generally accord with the approach of the Irish courts. In that case, Lord Brown said that the decision must be intelligible and adequate and the decision must enable the reader to understand why the matter was decided as it was and what conclusions were reached on ‘the principle 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. Such adverse inferences will not be readily drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission or as the case may be, it should enable the development’s unsuccessful opponents to understand how the policy or approach which underlies the grant of permission may impact upon future, similar applications. The reasons for the decision must be read in a straight forward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. Therefore, a reasons challenge will only succeed if the party aggrieved can satisfy the court that he is genuinely being substantially prejudiced by the failure to provide an adequately reasoned decision.”
The applicant places much emphasis on the sentence above to the effect that reasons should indicate how future applications would be dealt with. It is to be observed that the above comments are clearly obiter.
58. The only case where this issue was squarely before the Irish Courts and fully argued was in Stack v. An Bord Pleanála (Unreported, High Court, Ó Caoimh J., 7th March, 2003). There, an argument was made that the decision to refuse to grant the applicants planning permission was ultra vires due to the failure of the respondent to furnish any or adequate reasons for its decision. It was contended that the decision was formulaic and ambiguous, in that, it was not clear if the respondent intended to indicate that no development would be permitted on the site or in such areas or if the Board intended to rule out all development on the site. Counsel for the applicant in that case relied on a passage from the judgment of Lord Bridge of Harwich in Save Britain’s Heritage v. Secretary of State [1991] 2 All E.R. 10, which is consistent with the position the House of Lords adopted in South Bucks District Council v. Porter (No.2) [2004] 1 WLR 1953 as to the adequacy of reasons. That passage reads:-
“The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which the deficiency or reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the local planning authority or some official body like the respondents, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.”
Ó Caoimh J. at p.22, found that the above observations were obiter and rejected the statement as being a correct statement of the law in this jurisdiction:-
“With regard to Save Britain’s Heritage v. Secretary of State [1991] 2 All E.R. 10, I accept the submissions of counsel for the Board that the observations of Lord Bridge in his speech were obiter as they relate to the failure to grant a developer planning permission and in the particular case the developer had in fact been granted planning permission. I am not at all convinced that the views expressed by Lord Bridge accord with what has been stated as being required in this jurisdiction and I am not inclined to accept this authority as representing a correct statement of the law in this jurisdiction.”
59. I am satisfied, having regard to the above and to the jurisprudence on the duty to give reasons as set out in paragraphs 55-59 that the law in this jurisdiction does not go so far as to impose a duty on the respondent to cite what may be acceptable to it in a future application in order to comply with its duty to give reasons. On the facts of this case I am satisfied that the reasons given as to why retention permission was not granted satisfy the requirements as enunciated by Kelly J. in Mulholland v. An Bord Pleanála [2006] 1 IR 453. Sufficient reasons must be given so as to equip the applicant to appeal the decision or to judicially review it. I am of the view that the reasons given by the respondent conform to this standard. I note however that in fact it does appear that the reasons given do actually provide an indication as what type of development would be likely to obtain permission on the site in question in any future application i.e. changes to “scale, separate entrances and operational hours”. For the reasons above, I must refuse the relief sought on this ground.
(vii) Irrationality
60. Mr. Collins submitted there was irrationality on the part of the respondent in granting permission in respect of some of the works in the works application and in refusing others. He urged the Court to apply a test of anxious scrutiny in assessing what the respondent did.
61. Ms. Butler submitted that some elements of the works application were undoubtedly connected with the use as a bar/disco, such as the water feature, awning, outdoor chairs and tables. She argued that the construction of a structure could not be divorced from a use which was found to be unauthorised.
62. Leave should be refused to the applicant on this ground. I am satisfied that it would be illogical on the part of the respondent to allow works that are clearly connected with the refused bar/disco use. For example, taken together a water feature, awning, outdoor chairs and tables would constitute a beer garden and thus would complement an unauthorised use.
63. As to the signage, the decision made by the respondent was that some signs proposed for retention constituted visual clutter. This is clearly a planning matter properly within the remit of the respondent. Leave is refused on this ground.
64. In relation to the Bram Stoker Museum/Dracula Experience, the refusal was based on over intensification of the site and inadequate access. This is a perfectly rational reason well within the remit of the respondent. Leave is also refused on this ground.
(viii) Failure to take account of relevant matters and the taking into account of irrelevant matters
65. The applicant made the case that the respondent had regard to an irrelevant consideration based on the fact that a note of a pre-planning consultation between the applicant’s representatives and the planning authority, prepared by the planning authority, was not contemporaneous and omitted relevant information, in particular the alleged view of the planning authority that it did not have a difficulty with some of the development. The consultations took place in accordance with s.247 of the Act of 2000.
66. Ms. Butler submitted that although there was a statutory basis for pre-planning consultations that the content of those discussions were not binding on the planning authority and cannot be relied on. She characterised the obligation on the planning authority under s.247 of the Act of 2000 as being quite limited, a written record only being required for the benefit of the planning authority to ensure consistency in its position. Even if the Court were to hold that the note was insufficient, in her submission it was evident that the respondent was fully appraised of the applicant’s position that the planning authority had led it to believe that it would receive permission for the works.
67. The note was exhibited in the second affidavit of Patricia Hyde, sworn on the 3rd July, 2009. The relevant segment reads as follows:-
“Proposed Development: Main issue discussed was the regularisation of unauthorised public bar and nightclub at the premises, lesser issue was regularisation of minor extensions to the premises, e.g. lift shaft and corridor.
…
Was proposal broadly acceptable? No
No 29 zoning precluded the use of the premises as a large public bar and nightclub.”
68. It is, clearly, a terse account of events but all that is required under s.247(5) of the Act of 2000 is that a record in writing be kept of “any consultations … that relate 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”. What the planning authority is required to do during the course of these discussions is outlined in s.247(2) as follows:-
“(2) In any consultations under subsection (1), the planning authority shall advise the person concerned of the procedures involved in considering a planning application, including any requirements of the permission regulations, and shall, as far as possible, indicate the relevant objectives of the development plan which may have a bearing on the decision of the planning authority.”
69. Section 247 (3) contains the following disclaimer:-
“The carrying out of consultations shall not prejudice the performance by a planning authority of any other of its functions under this Act, or any regulations made under this Act and cannot be relied upon in the formal planning process or in legal proceedings.”
70. The above provisions make it clear that the pre-planning consultations are precluded from being relied upon in the planning process. They serve mainly to advise an applicant of the relevant procedures in the planning sphere and the aspects of the development plan relevant to their application. In circumstances where they cannot be relied on in the planning process it is difficult to see how a failure to comply with any requirements in relation thereto could invalidate the decision reached at the end of that process. The applicant must be refused leave on this ground.
71. The applicant also complained that the respondent had misconstrued a photograph (photograph no. 4) which showed portacabins on an adjacent site which, it was alleged, the respondent took to be on the site of the applicant leading it to refuse permission for containers on the site on the grounds of visual amenity.
72. Ms. Butler submitted that there was no doubt that the location of the portacabins on the adjacent site were identified to the respondent. She referred to the inspector’s report in this regard. For the respondent to have been misled, in her submission, would have meant that the members of the board misread the map, which clearly displayed the boundaries between the applicant’s site and the adjacent site and ignored the submissions of Mr. Ó Muire, on behalf of the applicant, such a sequence of errors being an unsustainable proposition, in her submission.
73. I am satisfied that there is no evidence put forward to suggest that the respondent did not understand the exact location of the containers on site. The photograph clearly shows what are shipping containers and what are portacabins on the adjacent site. The map itself specifies and names the portocabins as belonging to Irish Rail, who operate on the adjacent site. For these reasons, substantial grounds have not been raised on this point and accordingly, leave should be refused.
Summary
74. For the reasons given above, I refuse leave in respect of the following grounds that were raised; breach of fair procedures; the failure to have proper regard to the development plan; the irrationality of the decision and the failure to take into account relevant matters and the taking into account of irrelevant matters. In respect of the remaining grounds; i.e. that the respondent proceeded on a false assumption; that the respondent relied on its previous determination under s.5 of the Act of 2000; that there was a failure to give adequate reasons, although I consider it was appropriate to grant leave, on substantive examination I must refuse the reliefs sought by the applicant in this case for the reasons as outlined above in this judgment.