State Works
Planning and Development Act
PART XI
Development by Local and State Authorities, etc.
F974[
Restrictions on development by certain local authorities
178. (1) The council of a county shall not effect any development in its functional area which contravenes materially the development plan.
(2) The council of a city shall not effect any development in the city which contravenes materially the development plan.
(3) The council of a city and county shall not effect any development in the city and county which contravenes materially the development plan.]
Annotations
Amendments:
F974
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 63(3), S.I. No. 214 of 2014.
F975[
Development in maritime area by local authority or State authority
178A. (1) A local authority shall not carry out, or make an agreement with another person for the carrying out, of development in the maritime area, unless—
(a) it is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
(b) it is the owner of land on which it is proposed to carry out the development concerned, or
(c) in circumstances where it proposes to carry out the development on land that it does not own, it carries out the development with the consent, or on behalf, of the owner of that land.
(2) A State authority shall not carry out, or make an agreement with another person for the carrying out, of development in the maritime area, unless—
(a) it is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
(b) it is the owner of land on which it is proposed to carry out the development concerned, or
(c) in circumstances where it proposes to carry out the development on land that it does not own, it carries out the development with the consent, or on behalf, of the owner of that land.
(3) A coastal planning authority shall not carry out development in the maritime area that materially contravenes the National Planning Framework or any maritime spatial plan applicable to that area.]
Annotations:
Amendments:
F975
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 42, S.I. No. 488 of 2022.
Local authority own development.
179.—(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 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 paragraph (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) F976[…]
(d) This section shall also apply to proposed development which is carried out within the functional area of a local authority which is a planning authority, on behalf of, or in partnership with the local authority, pursuant to a contract with the local authority.
(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 plans 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) F977[(a)(i) The chief executive of a local authority shall, where an application is not made to the Board for a screening determination referred to in article 120(3)(b) of the Planning and Development Regulations 2001, 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 report in writing in relation to the proposed development and submit the report to the members of the authority.
(ii) The chief executive of a local authority shall, where an application is made to the Board for a screening determination referred to in article 120(3)(b) of the Planning and Development Regulations 2001, within 8 weeks after the making by the Board of a screening determination that an environmental impact assessment is not required in respect of the proposed development, prepare a report in writing 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,
F978[(iia) include the screening determination on why an environmental impact assessment is not required and specify the features, if any, of the proposed development and the measures, if any, envisaged to avoid or prevent what might have otherwise been significant adverse effects on the environment of the development,]
(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 F979[chief executive] 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.
F980[(c) A report prepared in accordance with paragraph (a) shall—
(i) in the case of development situated wholly within the maritime area—
(I) contain an evaluation of the consistency of the proposed development with principles of proper planning and sustainable development and the objectives of maritime spatial planning, having regard to the National Planning Framework, the National Marine Planning Framework and any maritime spatial plan applicable to the maritime site in which it is proposed that the development would be carried out, and
(II) specify the reasons and considerations for that evaluation,
and
(ii) in the case of development proposed to be situated partly on the landward side of a coastal planning authority’s functional area and partly in the maritime area—
(I) contain an evaluation referred to in subparagraph (ii) of paragraph (b) and an evaluation of the consistency of the proposed development with principles of proper planning and sustainable development and objectives of maritime spatial planning, having regard to the National Planning Framework, the National Marine Planning Framework and any maritime spatial plan applicable to the maritime site in which it is proposed that the development would be carried out, and
(II) specify the reasons and considerations for those evaluations,
in addition to the matters referred to in subparagraphs (i), (iia), (iii), (iv) and (v) of paragraph (b).]
(4) (a) The members of a local authority shall F981[, within 6 weeks of the receipt of the report of the F979[chief executive],] consider the proposed development and the report of the F979[chief executive] under subsection (3).
(b) Following the consideration of the F979[chief executive’s report] under paragraph (a), the proposed development may be carried out as recommended in the F979[chief executive’s report], unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the F979[chief executive’s report], or decides not to proceed with the development.
F982[(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 F979[chief executive’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) F983[Sections 138, 139 and 140 of the Local Government Act, 2001,] shall not apply to development under this section.
(6) This section shall not apply to proposed development which—
F984[(a) consists of works of maintenance or repair other than works to a protected structure, or a proposed protected structure, which would materially affect the character of—
(i) the structure, or
(ii) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest,]
(b) is necessary for dealing urgently with any situation which the F979[chief executive] considers is an emergency situation calling for immediate action,
F985[(bb) consists of works, other than works involving road widening, to enhance public bus services or improve facilities for cyclists provided under section 95 (as amended by section 37 of the Road Traffic Act 1994) of the Road Traffic Act 1961 or under section 38 of the Road Traffic Act 1994,]
F986[(c) consists of works which a local authority is required to undertake—
(i) by or under any enactment,
(ii) by or under the law of the European Union, or a provision of any act adopted by an institution of the European Union, or
(iii) by order of a court,
(d) is development in respect of which an F987[environmental impact assessment report] is required under section 175 or under any other enactment, or
(e) is development in respect of which an appropriate assessment is required under section 177AE, or under any other enactment.]
Annotations
Amendments:
F976
Deleted (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(h), S.I. No. 458 of 2001.
F977
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 27(a), in effect as per reg. 2(1).
F978
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 27(b), in effect as per reg. 2(1).
F979
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. nos. 66-69, S.I. No. 436 of 2018.
F980
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 43, S.I. No. 488 of 2022.
F981
Substituted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 29(b), S.I. No. 270 of 2017.
F982
Substituted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 29(c), S.I. No. 270 of 2017.
F983
Substituted (1.01.2002) by Local Government Act 2001 (37/2001), s. 5(3) and sch. 4, S.I. No. 588 of 2001.
F984
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 58(a), S.I. No. 405 of 2010.
F985
Inserted (1.01.2011) by Public Transport Regulation Act 2009 (37/2009), s. 46(2), S.I. No. 615 of 2010.
F986
Substituted (15.11.2011) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011 (S.I. No. 584 of 2011), reg. 6.
F987
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. 83, in effect as per reg. 2(1).
F988
Inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 13, not commenced as of date of revision.
Modifications (not altering text):
Special Provisions
C158
Prospective affecting provision: subs. (1)(a) amended by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 13, not commenced as of date of revision.
179.—(1) (a) The Minister may prescribe a development or a class of development F988[, other than development to which section 179A applies,] 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 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.
C159
Application of section restricted (7.02.2014) by Water Services (No. 2) Act 2013 (50/2013), s. 33(11), S.I. No. 575 of 2014.
Water services strategic plan.
33.— …
(11) In considering a proposed development under section 179 of the Act of 2000 a local authority shall not decide that the development should not be proceeded with solely on the grounds that the said development is not specifically referred to in the water services strategic plan in force if the authority considers the development will facilitate the achievement of the objectives of the water services strategic plan.
…
C160
Application of section restricted and matters to be considered provided (27.09.2007) by Waste Water Discharge (Authorisation) Regulations 2007 (S.I. No. 684 of 2007), reg. 41(1) and 43.
Limitation of Act of 2000
41. (1) Subject to Regulation 42(2), and notwithstanding sections 34, 37, 37E, 175 and 226 of the Act of 2000, or any other provision of that Act, where, under these Regulations, an authorisation has been granted in respect of a waste water discharge from a waste water works—
(a) a planning authority, or An Bord Pleanála, where it decides to grant a permission under section 34, 37 or 37E on appeal or otherwise, as the case may be, of the said Act, or
(b) An Bord Pleanála, where it decides to grant an approval under section 175 or 226 of the said Act,
in respect of a proposed development that involves a waste water discharge from a waste water works, shall not subject the permission or approval, as the case may be, to conditions which are for the purposes of controlling the waste water discharge.
(2) Where a permission or approval under the Act of 2000 has been subjected to conditions, other than conditions as referred to in paragraph (3)(b), that are for the purposes of controlling discharges from a development as described in paragraph (1), those conditions shall cease to have effect upon the granting of an authorisation under these Regulations in respect of the waste water discharges concerned.
…
Consideration of proposals by planning authorities and An Bord Pleanála
43. (1) Where a planning authority or An Bord Pleanála is considering an application for permission, an appeal or an application for approval under section 34, 37, 37E, 175 or 226 of the Act of 2000 for development being development which involves the disposal of waste water to a waste water works, or is considering such a development under section 179 of the Act of 2000, the planning authority or the Board, as the case may be, shall consider whether the discharge of waste water from the proposed development, in conjunction with existing discharges to the receiving waters, would cause non-compliance with the combined approach or, in situations where there is existing non-compliance, would result in a significant breach of the combined approach.
…
C161
Provision for consideration of waste management under Part made by Waste Management Act 1996 (10/1996), s. 22(10D) as inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 26(2)(d), S.I. No. 393 of 2004.
Waste management plans.
22.— …
(10D) (a) In performing their functions under the Planning and Development Acts 2000 to 2002, and, in particular, their functions under Part III and sections 175 and 179 of the Planning and Development Act 2000, planning authorities and An Bord Pleanála shall ensure that such measures as are reasonably necessary are taken to secure appropriate provision for the management of waste (and, in particular, recyclable materials) within developments, including the provision of facilities for the storage, separation and collection of such waste (and, in particular, such materials) and the preparation by the appropriate persons of suitable plans for the operation of such facilities.
(b) The Minister may issue guidelines as to the steps that may be taken to comply with this subsection.
Editorial Notes:
E376
Power pursuant to subs. (2) exercised (3.07.2017) by Planning and Development (Strategic Housing Development) Regulations 2017 (S.I. No. 271 of 2017), in effect as per reg. 2.
E377
Authorisations or approvals issued to water authorities under section deemed to be issued to Irish Water (30.10.2015) by Water Services (No. 2) Act 2013 (Other Licences, Authorisations and Permits) Order 2015 (S.I. No. 462 of 2015), in effect as per arts. 3 and 4.
E378
Deciding to vary or modify a proposed local authority own development, or deciding not to proceed with the development is a reserved function of local authorities as provided by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A part 2 item 15 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.
E379
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E380
Power pursuant to section exercised (11.03.2002) by Planning and Development Regulations 2002 (S.I. No. 70 of 2002).
E381
Power pursuant to section exercised (21.01.2001 and 11.03.2001) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E382
Previous affecting provision: subs. (3)(a) amended by Planning and Development (Amendment) Act 2018 (16/2018), s. 6(1) and sch. 2 ref. no. 66, not commenced; deleted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 44, in effect as per reg. 1(2).
E383
Previous affecting provision: subs. (3)(a) amended (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 29(a), S.I. No. 270 of 2017, substituted as per F note above.
E384
Previous affecting provision: application of section restricted by Water Services Act 2007 (30/2007), s. 36(5)(b) and (21), not commenced; repealed (1.01.2014) by Water Services (No. 2) Act 2013, s. 4(1), S.I. No. 575 of 2013.
E385
Previous affecting provision: subs. (6)(c) substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 58(b), S.I. No. 405 of 2010; substituted as per F-note above.
F989[Local authority own housing development
179A. …]
Annotations:
Amendments:
F989
Inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 14, not commenced as of date of revision.
Modifications (not altering text):
C162
Prospective affecting provision: section by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 14, not commenced as of date of revision.
Housing Development
F989[179A. (1) This section applies to housing development—
(a) that is carried out by, on behalf of, or jointly or in partnership with, a local authority pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity,
(b) that does not materially contravene the development plan or local area plan for the area,
(c) that is in accordance with the strategy included in the development plan for the area in accordance with section 94(1),
(d) that is not subject to a requirement, in accordance with the Environmental Impact Assessment Directive, for an assessment with regard to its effects on the environment,
(e) that is not subject to a requirement, in accordance with the Habitats Directive, for an appropriate assessment,
(f) that is on land—
(i) that is owned by a local authority or a State Authority,
(ii) that is zoned for residential use, and
(iii) that has access, or can be connected, to public infrastructure and facilities, including roads and footpaths, public lighting, foul sewer drainage, surface water drainage and water supply, necessary for dwellings to be developed and with sufficient service capacity available for such development,
and
(g) that is commenced on or before 31 December 2024.
(2) Prior to the commencement of development to which this section applies, the chief executive of the local authority shall inform the members of the local authority in relation to the development and shall provide documents, particulars or plans relevant to the development to the members.
(3) The Minister may make regulations providing for any or all of the following matters in respect of development to which this section applies:
(a) the giving of public notice by the local authority in respect of the development;
(b) the publication by a local authority of any specified notice in respect of the development;
(c) the making available for inspection, including by members of the public, of documents, particulars, plans or other information in relation to the development;
(d) notification by the local authority in respect of such development to such bodies as the Minister may prescribe;
(e) the entry of particulars of the development in the register;
(f) procedures for determining, through a case-by-case basis examination or by reference to prescribed thresholds or criteria, whether the development is one which should be made subject in accordance with the Environmental Impact Assessment Directive to a requirement for an assessment with regard to its effects on the environment, the information to be provided for the purposes of such a determination, the basis on which such a determination is to be made, the time for such a determination, the contents of such a determination, and the making available to the public of such a determination;
(g) procedures for determining whether the development is one which should be made subject, in accordance with the Habitats Directive, to an appropriate assessment;
(h) a requirement that local authorities provide the Minister with information regarding developments that have been notified, commenced, and completed, the type of information to be provided and the frequency with which such information is to be provided.
(4) Sections 138, 139 and 140 of the Local Government Act 2001 shall not apply in respect of development to which this section applies.
(5) In this section—
“housing development” includes—
(a) the construction or erection of a house or houses,
(b) the construction of a new road or the widening or realignment of an existing road, to serve houses referred to in paragraph (a),
(c) the construction or erection of pumping stations, treatment works, holding tanks or outfall facilities for waste water or storm water, to serve houses referred to in paragraph (a),
(d) the laying underground of sewers, mains, pipes or other apparatus,
(e) the provision of open spaces, recreational and community facilities and amenities and landscaping works to serve houses referred to in paragraph (a), and
(f) the provision of car parks, car parking places, surface water sewers and flood relief work, and ancillary infrastructure to serve houses referred to in paragraph (a);
“State Authority” means any of the following:
(a) a Minister of the Government;
(b) an Education and Training Board established under the Education and Training Boards Act 2013;
(c) Courts Service;
(d) Digital Hub Development Agency;
(e) Dublin Institute for Advanced Studies;
(f) Enterprise Ireland;
(g) Environmental Protection Agency;
(h) the Garda Síochána;
(i) Health Service Executive;
(j) Housing and Sustainable Communities Agency;
(k) Industrial Development Agency (Ireland);
(l) an Institute of Technology being a college within the meaning of section 2 of the Regional Technical Colleges Act 1992;
(m) Institute of Public Administration;
(n) Prison Service of the Department of Justice which is charged with the management of prisons;
(o) Legal Aid Board;
(p) Marine Institute;
(q) National Archives;
(r) Oberstown Children Detention Campus;
(s) Commissioners of Public Works in Ireland;
(t) Ordnance Survey Ireland;
(u) Sport Ireland;
(v) State Laboratory;
(w) Teagasc – the Agriculture and Food Development Authority;
(x) a technological university established by virtue of an order under section 36 of the Technological Universities Act 2018 ;
(y) An tSeirbhís Oideachais Leanúnaigh agus Scileanna.]
Development by State authorities.
181.—(1) (a) The Minister may, by regulations, provide that, except for this section F996[and sections 181A to 181C], the provisions of this Act shall not apply to any specified class or classes of development by or on behalf of a State authority where the development is, in the opinion of the Minister, in connection with or for the purposes of public safety or order, the administration of justice or national security or defence and, for so long as the regulations are in force, the provisions of this Act shall not apply to the specified class or classes of development.
(b) The Minister may, by regulations, provide for any or all of the following matters in relation to any class or classes of development to which regulations under paragraph (a) apply:
(i) the publication by a State authority of any specified notice with respect to development that it proposes to carry out or to have carried out on its behalf;
(ii) the giving by a State authority, to the planning authority for the area in which proposed development is to be carried out, or any other specified person, of any specified notice, documents, particulars, plans or other information with respect to the proposed development;
(iii) the making available for inspection by members of the public of any specified documents, particulars, plans or other information with respect to the proposed development;
(iv) F997[…]
(v) the making of submissions or observations to a State authority with respect to the proposed development;
F998[(vi) the reference to a specified person of any dispute or disagreement, with respect to the proposed development—
(I) between a State authority and the planning authority for the area (including, in circumstances where the planning authority is a coastal planning authority, the nearshore area of that authority) in which the proposed development is to be carried out, or
(II) between a State authority and the Board or the Maritime Area Regulatory Authority in relation to proposed development that is to be carried out in the outer maritime area;]
(vii) requiring a State authority, in deciding whether the proposed development is to be carried out, to have regard to any specified matters or considerations.
(2) (a) F999[Subject to Parts X and XAB and any regulations made under Parts X and XAB and subsections (2A) to (2AA), where development is proposed to be carried out] by or on behalf of F1000[a Minister of the Government, the Commissioners or a statutory undertaker], the Minister of the Government concerned or, in the case of development proposed to be carried out by or on behalf of the Commissioners, the Minister for Finance, may, if he or she is satisfied that the carrying out of the development is required by reason of an accident or emergency, by order provide that this Act F1001[(other than sections 50, 50A, 50B and 181)] or, as may be appropriate, any requirement or requirements of regulations under subsection (1)(b) specified in the order, shall not apply to the development, and for so long as such an order is in force this Act or the said requirement or requirements, as the case may be, shall not apply to the development.
F1002[(aa) Before making an order under paragraph (a), the Minister of the Government concerned (other than where the Minister concerned is the Minister) or, in the case of development proposed to be carried out by or on behalf of the Commissioners, the Minister for Public Expenditure and Reform, shall—
(i) inform the Minister of his or her intention to make an order under paragraph (a) and provide to the Minister a draft of the order, and
(ii) inform any other State authority of his or her intention to make an order under paragraph (a) and provide to the State authority a draft of the order where, in the opinion of the Minister concerned, the draft order relates to the functions of that State authority.
(ab) Where the Minister proposes to make an order under this subsection, the Minister shall, before making such order, comply with paragraph (aa)(ii).]
(b) A Minister of the Government may by order revoke an order made by him or her under paragraph (a).
(c) A Minister of the Government shall cause an order made by him or her under this subsection to be published in Iris Oifigiúil and notice of the making of the order to be published in a newspaper circulating in the area of the development concerned.
F1002[(2A) (a) F1003[In subsections (2) to (2AA)]—
(i) “approval” means a decision by the Board under subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (2L) in relation to an application for approval,
(ii) “Minister concerned” means—
(I) the Minister of the Government who proposes to carry out development referred to in this subsection or subsection (2)(a), or have it carried out on his or her behalf, or
(II) the Minister for Public Expenditure and Reform where the Commissioners propose to carry out development referred to in this subsection or subsection (2)(a), or have it carried out F1003[on their behalf, or]
F1004[(III) where a statutory undertaker proposes to carry out a development referred to in this subsection or subsection (2)(a), or have it carried out on its behalf, the Minister of the Government responsible for the enactment or instrument under an enactment by or under which the statutory undertaker is authorised, and]
(iii) “proposed development” means development proposed to be carried out by or on behalf of a F1003[Minister of the Government, the Commissioners or a statutory undertaker] under subsection (2)(a).
F1004[(aa) In this subsection, “enactment” has the same meaning as it has in the Interpretation Act 2005.]
(b) F1005[Where development is proposed to be carried out by or on behalf of a Minister concerned or a statutory undertaker] pursuant to an order under subsection (2)(a) and the Minister concerned is satisfied, having had regard to Part X and Part XAB, that an environmental impact assessment or an appropriate assessment, or both such assessments of the proposed development is or are required, the Minister concerned shall F1006[, other than where a declaration has been made under paragraph (ba)(i),] prepare or cause to be prepared an application for approval, which shall include the documents and information referred to in paragraph (c), in respect of the development and shall apply to the Board for such approval.
F1006[(ba) Where a Minister concerned is satisfied that the carrying out of a proposed development is for the sole purpose of responding to a civil emergency, he or she may –
(i) declare that the proposed development is exempt from a requirement under paragraph (b), arising only on the basis that an environmental impact assessment of the proposed development is required, to prepare an application for approval and apply to the Board for such approval, or
(ii) declare that the proposed development is exempt from a requirement under paragraph (c) to prepare an environmental impact assessment report in respect of the development and include such report with an application to the Board under paragraph (b),
if the Minister considers that the application of the requirement concerned would have an adverse effect on that purpose.
(bb) Notice of a declaration made under paragraph (ba) shall, as soon as may be, be published in Iris Oifigiúil and in at least one daily newspaper published in the State.]
(c) An application for approval referred to in paragraph (b) shall include a draft of the order the Minister concerned proposes to make under subsection (2)(a), the plans, drawings and particulars in relation to the proposed development and, other than where an exemption is granted under subsection (2I) F1006[or a declaration is made under paragraph (ba)(ii)], an environmental impact assessment report or Natura impact statement, or both that report and that statement, as the case may be, in respect of the development.
(d) The environmental impact assessment report and the Natura impact statement provided under paragraph (c) shall, as appropriate, comply with the requirements of Parts X and XAB respectively.
(e) A Minister concerned shall not F1006[, except where a declaration is made under paragraph (ba)(i),] make an order under subsection (2)(a) in respect of development which requires an environmental impact assessment or an appropriate assessment, or, as necessary, both such assessments, proposed to be carried out F1005[by or on behalf of the Minister concerned or a statutory undertaker] under the order, other than in accordance with an approval of that proposed development.
(f) On receipt of an application for approval under paragraph (b), the Board shall, other than where an exemption is granted under subsection (2I)F1006[or a declaration is made under paragraph (ba)(ii)], carry out an environmental impact assessment, or an appropriate assessment, or, as necessary, both such assessments, in accordance with Part X or Part XAB, as the case may require.
(2B) Before a Minister concerned makes an application for approval under subsection (2A), the Minister shall—
(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—
(i) stating that—
(I) the Minister proposes to seek approval with regard to the proposed development,
(II) an environmental impact assessment report or Natura impact statement or both that report and that statement, as the case may be, has or have been prepared in respect of the proposed development, and
(III) where relevant, the proposed development is likely to have significant effects on the environment in another Member State of the European Union or a state that is a party to the Transboundary Convention,
(ii) specifying the times and places at which, and the period (which shall not be less than 30 days) during which a copy of the application and the environmental impact assessment report or Natura impact statement or both that report and that statement, as the case may be, may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),
(iii) inviting the making, during such period, of submissions and observations to the Board relating to the likely significant effects on the environment or adverse effects on the integrity of a European site, as the case may be, of the proposed development, if carried out,
(iv) specifying the types of approval the Board may make, under subsection (2L)(a), in relation to the application,
(v) stating that a person may question the validity of the approval by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) in accordance with sections 50, 50A and 50B, and
(vi) stating where practical information on the review mechanism can be found,
(b) send a copy of the application and the environmental impact assessment report or Natura impact statement or both that report and that statement, as the case may be, to the planning authority or each planning authority in whose functional area the proposed development would be situate and to any prescribed authorities, those prescribed authorities being, for the purposes of this subsection and subsection (2F), the same as those authorities prescribed for the purposes of section 175(4), together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to the likely significant effects on the environment or adverse effects on the integrity of a European site, as the case may be, of the proposed development, F998[if carried out]
F1007[(bb) in the case of proposed development in the maritime area, send a—
(i) copy of the application,
(ii) copy of the environmental impact assessment report (if any) and Natura impact statement (if any), and
(iii) a notice stating that submissions or observations may, during the period referred to in subparagraph (ii) of paragraph (a), be made in writing to the Board in relation to the application for approval,
to the Maritime Area Regulatory Authority, and]
(c) where the proposed development is likely to have significant effects on the environment of a Member State of the European Union or a state that is a party to the Transboundary Convention, send a copy of the application and the environmental impact assessment report or Natura impact statement or both that report and that statement, as the case may be, to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.
(2C) The Board may—
(a) if it considers it necessary to do so, require the Minister concerned who, in respect of a proposed development, has applied for approval, to furnish to the Board such further information in relation to the likely significant effects on the environment or adverse effects on the integrity of a European site of the proposed development as the Board may specify, or
(b) if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of the proposed development, notify the Minister concerned that it is of that view and invite that Minister to make to the terms of the proposed development alterations specified in the notification and, if the Minister concerned makes those alterations, to furnish to it such information (if any) as it may specify in relation to the proposed development, in the terms as so altered, or where necessary, a revised environmental impact assessment report or revised Natura impact statement or both that report and that statement, as the case may be, in respect of it.
(2D) If the Minister concerned makes the alterations to the terms of the proposed development specified in a notification given to him or her by the Board under subsection (2C), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of the application for approval of the proposed development concerned under subsection (2A).
(2E) The Board shall—
(a) where it considers that any further information furnished to it pursuant to a requirement made under subsection (2C)(a) contains significant additional data relating to the likely significant effects on the environment or adverse effects on the integrity of a European site, as the case may be, of the proposed development, or
(b) where the Minister concerned has made the alterations to the terms of the proposed development specified in a notification given to him or her under subsection (2C)(b),
require the Minister concerned to comply with subsection (2F).
(2F) Where subsection (2E) applies the Minister concerned shall—
(a) publish in one or more newspapers circulating in the area or areas in which the proposed development would be situate a notice stating that, as appropriate—
(i) further information in relation to the proposed development has been furnished to the Board, or
(ii) the Minister concerned has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a revised environmental impact assessment report or revised Natura impact statement or both that report and that statement, as the case may be, in respect of the development has been furnished to the Board,
indicating the times at which, the period (which shall not be less than 3 weeks in a case other than a case relating to a revised environmental impact assessment report) during which and the place, or places, where a copy of the information or the environmental impact assessment report or Natura impact statement or both that report and that statement, as the case may be, referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information, report or statement may be made to the Board before the expiration of the indicated period, and
(b) send to each prescribed authority to which a notice was given pursuant to subsection (2B)(b) or (c)—
(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the information, report or statement referred to in paragraph (a)(ii), and
(ii) a copy of that further information, information, report or statement,
and indicate to the authority that submissions or observations in relation to that further information, information, report or statement may be made to the Board before the expiration of a period (which shall not be less than 3 weeks in a case other than a case relating to a revised environmental impact assessment report) beginning on the day on which the notice is sent to the prescribed authority by the Minister concerned.
(2G) The period referred to in subsection (2F)(a) or (b) shall, in a case relating to a revised environmental impact assessment report, not be less than—
(a) 30 days where the report has been furnished to the Board, and
(b) 3 weeks where the report has not been furnished to the Board.
(2H) Before making a decision under subsection (2L)(a), the Board shall consider—
(a) the environmental impact assessment report or Natura impact statement or both that report and statement, as the case may be, submitted pursuant to subsection (2A) or (2C) or both, as the case may be,
(b) any submissions or observations made in accordance with subsection (2B) or (2F) or both, as the case may be, and
(c) any other information furnished in accordance with subsection (2C),
relating to the likely significant effects on the environment or adverse effects on the integrity of a European site of the proposed development.
(2I) (a) (i) Notwithstanding Part X, at the request in that behalf of the Minister concerned who has made an application for approval in respect of a proposed development, the Board may grant an exemption referred to in paragraph (b) where the Board is satisfied that—
(I) exceptional circumstances so warrant,
(II) the application of the requirement to prepare an environmental impact assessment report or to carry out an environmental impact assessment or both that report and that assessment, as the case may be, or any other provisions implementing the Environmental Impact Assessment Directive as set out in this section would adversely affect the purpose of the proposed development, and
(III) the objectives of the Environmental Impact Assessment Directive are otherwise met.
(ii) The Minister concerned may submit the request referred to in subparagraph (i) with the application for approval under subsection (2A) or at any time before the Board makes its decision under subsection (2L)(a).
(b) Subject to paragraph (c), the Board may grant, in respect of the proposed development, an exemption from the requirement under this section to prepare an environmental impact assessment report or carry out an environmental impact assessment, or from any other provision of Part X as the Board considers appropriate.
(c) No exemption may be granted under paragraph (b) in respect of the proposed development where another Member State of the European Union or a state that is a party to the Transboundary Convention, having been informed about the proposed development and its likely significant effects on the environment in that State or state, as the case may be, has indicated that it intends to furnish views on those effects.
(2J) The Board shall, in deciding to grant an exemption under subsection (2I)—
(a) consider whether the likely significant effects, if any, of the proposed development on the environment should be assessed in some other form, and
(b) make available to members of the public the information relating to the decision to grant an exemption under subsection (2I), the reasons for granting such exemption and the information obtained under any other form of assessment referred to in paragraph (a),
and the Board may apply such requirements regarding these matters in relation to the application for approval as it considers necessary or appropriate.
(2K) Notice of any decision by the Board to grant an exemption under subsection (2I), of the reasons for granting the exemption and of any requirements applied under subsection (2J) shall, as soon as may be—
(a) be published in Iris Oifigiúil, on the Board’s website and in at least one daily newspaper published in the State, and
(b) be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (2J), to the European Commission.
(2L) (a) The Board shall, in respect of an application for approval under subsection (2A), make its decision as expeditiously as possible having regard to the requirement for the carrying out of the proposed development by reason of an accident or emergency and may, in respect of such application—
(i) approve the proposed development,
(ii) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,
(iii) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or
(iv) refuse to approve the proposed development,
and may attach to an approval under subparagraph (i), (ii) or (iii) such conditions or compensatory measures, or both as the case may be, as it considers appropriate.
(b) F1005[The Minister concerned or a statutory undertaker] shall carry out or have carried out the proposed development to which the approval relates in accordance with any conditions attached to that approval.
(2M) (a) The Board shall send a copy of the decision under subsection (2L)(a) to the Minister concerned, to any planning authority in whose area the proposed development shall be situated and to any person who made submissions or observations on the application for approval.
F1007[(aa) The Board shall, in the case of development proposed to be situated wholly or partly in the outer maritime area, send a copy of the decision under paragraph (a) of subsection (2L) to—
(i) the Minister concerned,
(ii) any coastal planning authority in whose nearshore area it is proposed that part of the development would be situated,
(iii) the Maritime Area Regulatory Authority, and
(iv) any person who made submissions or observations on the application for approval.]
(b) The Board shall cause to be published as soon as may be, in one or more newspapers circulating in the area or areas and on its website, a notice informing the public of the decision under subsection (2L)(a).
(c) The notice referred to in paragraph (b) shall state that details of the decision by the Board referred to in subsection (2N) shall be published on the website of the Board as soon as may be.
(d) The notice shall state that a person may question the validity of any such decision by the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with sections 50, 50A and 50B.
(e) The notice shall identify where practical information on the review mechanism can be found.
(2N) A decision of the Board under subsection (2L)(a) shall state—
(a) the reasoned conclusion, in relation to the likely significant effects on the environment of the proposed development, and, where relevant, whether the development would have adverse effects on the integrity of a European site,
(b) in relation to the decision of the Board under subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (2L), where a decision (being a decision which arises from the consideration of the environmental impact assessment report concerned) by the Board is different from the recommendation in a report of a person assigned to report on behalf of the Board in relation to the application for approval, the main reasons for not accepting the recommendation in the last-mentioned report to approve or refuse to approve the development,
(c) where a decision to impose a condition (being a condition which arises from the consideration of the environmental impact assessment report or Natura impact statement, or both such report and such statement, in respect of the proposed development) in relation to any approval is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on behalf of the Board in relation to the application for approval, the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition,
(d) in relation to the decision of the Board under subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (2L), that the Board is satisfied that the reasoned conclusion on the likely significant effects on the environment or adverse effects on the integrity of a European site of the proposed development was up to date at the time of the taking of the decision,
(e) that a person may question the validity of any such decision by the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with sections 50, 50A and 50B, and
(f) where practical information on the review mechanism can be found.
(2O) An approval and the notification of the approval shall include a summary of the results of consultations that have taken place and information gathered in the course of the environmental impact assessment or appropriate assessment, or both such assessments, as the case may be, and, where appropriate, the comments received in the course of the environmental impact assessment from an affected Member State of the European Union or a state that is a party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.
(2P) In considering under subsection (2H) information furnished relating to the likely significant effects of a proposed development on the environment or adverse effects on the integrity of a European site, the Board shall have regard to, as appropriate—
(a) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact, and
(b) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact.
(2Q) Nothing in subsections (2A) to (2AA) shall require the disclosure by a Minister of the Government, the Commissioners or the Board of details of the internal arrangements of a proposed development which might prejudice the internal or external security of the development or facilitate any unauthorised entrance to, or exit from, the development of any person when it is completed.
(2R) (a) A Minister concerned who is considering whether to apply for approval for proposed development under subsection (2A) (referred to in this subsection and in subsections (2S), (2T), (2V) and (2W) as a “prospective applicant”) may, before making the application, enter into consultations with the Board in relation to the proposed development.
(b) The prospective applicant may notify the Board in writing of the intention of the prospective applicant to end the consultations with the Board referred to in paragraph (a) and, upon receipt of such notification by the Board, the consultations shall be deemed to have ended on the date of such receipt by the Board.
(2S) In any consultations under subsection (2R), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—
(a) the procedures involved in making the application and in considering such application, and
(b) what considerations related to the environment or a European site, may, in the opinion of the Board, have a bearing on its decision in relation to the application.
(2T) (a) A prospective applicant who is considering whether to apply for approval for proposed development under subsection (2A) may apply to the Board—
(i) for a determination under sections 176A and 176B or section 177U, as to whether a proposed development would be likely to have a significant effect on the environment F1008[or, in respect of a proposed development not directly connected with or necessary to the management of a European site, would be likely to have a significant effect either individually or in combination with other plans or projects on a European site], as the case may be (and inform the prospective applicant of the determination), or
(ii) for an opinion in writing prepared by the Board on what information will be required to be contained in an environmental impact assessment report or Natura impact statement or both that report and that statement as the case may be, in relation to the proposed development.
(b) Sections 176A and 176B shall apply to a determination of the Board referred to in paragraph (a)(i) subject to the following modifications:
(i) in sections 176A and 176B, “planning authority” or “authority” shall be read as “the Board”;
(ii) in section 176A(3), as if the following were omitted:
“and be accompanied by such fee as may be prescribed under section 246(1)(ca)”;
(iii) in section 176B(2)—
(I) in paragraph (a), as if “4 weeks” were substituted for “3 weeks”, and
(II) in paragraph (b), as if “5 weeks” were substituted for “4 weeks”;
(iv) in section 176B(4), as if paragraph (ii) were omitted;
(v) in section 176B, as if the following subsection were substituted for subsection (4A):
“(4A) The notice under subsection (4) shall be placed with any application for approval under section 181(2A) subsequently made in respect of which an application for a screening for environmental impact assessment was made under section 176A(2).”;
(vi) in section 176B(5)—
(I) as if paragraph (i) were omitted, and
(II) as if the following paragraph were substituted for paragraph (ii):
“(ii) stating that a person may question the validity of the screening determination for environmental impact assessment by the Board, by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with sections 50 and 50A,”;
(vii) any other necessary modifications have been made.
(c) Section 176C shall not apply to a determination of the Board referred to in paragraph (a)(i).
(2U) On receipt of such an application under subsection (2T)(a), the Board shall make its determination or give its opinion, as the case may be, as expeditiously as possible.
(2V) A prospective applicant shall, for the purposes of—
(a) consultations under subsection (2R), and
(b) the making of a determination or the giving of an opinion by the Board on an application under subsection (2T)(a),
supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.
(2W) (a) Without prejudice to subsection (2V) and subject to paragraph (b), where a prospective applicant has made an application under subsection (2T)(a)(ii) for an opinion in relation to what information will be required to be contained in an environmental impact assessment report or Natura impact statement or both that report and that statement as the case may be, the Board shall, after taking into account the information provided by the prospective applicant, in particular on the specific characteristics of the proposed development, including its location and technical capacity, and its likely significant effect on the environment F1008[or, in respect of a proposed development not directly connected with or necessary to the management of a European site, its likely significant effect either individually or in combination with other plans or projects on a European site], give an opinion in writing on the scope and level of detail of the information to be included in such report or such statement or both that report and that statement as the case may be, subject to any consultations carried out by the Board in relation to such opinion.
(b) The Board shall give the opinion before the submission by the prospective applicant of the environmental impact assessment report or Natura impact statement or both that report and that statement as the case may be.
(2X) Where an opinion referred to in subsection (2W) has been provided, the environmental impact assessment report or Natura impact statement or both that report and that statement as the case may be, shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the likely significant effects on the environment of the proposed development or adverse effect on the integrity of a European site, taking into account current knowledge and methods of assessment.
(2Y) Neither—
(a) the holding of consultations under subsection (2R), nor
(b) the provision of an opinion under subsection (2W),
shall prejudice the performance by the Board of any other of its functions under this Act or regulations made under this Act, or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.
(2Z) The Board shall keep a record in writing of any consultations under this section in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any application in respect of the proposed development relates.
F998[(2AA) Where an application for approval is made to the Board under subsection (2A), or where further information is required by and furnished to the Board in relation to an application made under that subsection, the Minister concerned shall, simultaneously, forward a copy of the application, any environmental impact assessment report or Natura impact statement prepared in relation to the application and any further information provided in relation to the application, to—
(a) the planning authority or each planning authority in whose functional area it is proposed to carry out the development, or
(b) in the case of an application for approval for development in the outer maritime area, the Maritime Area Regulatory Authority,
and the Board, and any such planning authority or the Maritime Area Regulatory Authority (as may be appropriate), shall, as soon as may be thereafter, publish on their internet websites and make available for inspection at their offices during normal office hours—
(i) that application,
(ii) any such environmental impact assessment report,
(iii) any such Natura impact statement, and
(iv) any such further information.]]
F1009[(3)(a) In this subsection—
F1011[…]
“Minister concerned” means—
(i) the Minister of the Government who proposes to carry out development to which this subsection applies, or have it carried out on his or her behalf, or
(ii) the Minister for Public Expenditure and Reform where the Commissioners propose to carry out development to which this subsection applies, or have it carried out on their behalf.
(b) This subsection applies to development (other than development prescribed for the time being under subsection (1) or in respect of which an order under subsection (2) is in force) F1011[…] proposed to be carried out by or on behalf of a Minister concerned where that Minister is satisfied—
(i) that the carrying out of the proposed development is urgent in order to preserve, protect or improve the quality of the environment or protect human health, and
(ii) having had regard to Part X and Part XAB, that an environmental impact assessment or an appropriate assessment, or, as necessary, both such assessments, of the proposed development is required.
(c) A Minister concerned, in relation to proposed development to which this subsection applies, may apply to the Board for approval.
(d) Where a Minister concerned applies to the Board for approval under this subsection—
(i) section 175 shall apply where the application for approval relates to proposed development where an environmental impact assessment is required, as it applies to such an application by a local authority, subject to the modifications that section 175 shall be read as if—
(I) the following were substituted for subsection (1):
“(1) Where development to which section 181(3) applies, belonging to a class of development identified for the purposes of section 176, is proposed to be carried out (in this section referred to as “proposed development”) by the Minister concerned within the meaning of section 181(3) (in this section referred to as the “Minister concerned”), that Minister concerned shall prepare, or cause to be prepared, an F1010[environmental impact assessment report] in respect thereof.”,
(II) in the section, other than as modified under clause (I), “Minister concerned” were substituted for “local authority”,
(III) in subsections (4)(b) and (5)(d)(ii), “prescribed authorities” and “prescribed authority” includes the local authority within whose functional area the proposed development is to be carried out, and
(IV) any other necessary modifications have been made,
(ii) section 177AE shall apply where the application for approval relates to proposed development where an appropriate assessment is required, as it applies to such an application by a local authority, subject to the modifications that section 177AE shall be read as if—
F998[(I) the following were substituted for subsection (1):
“(1) Where an appropriate assessment is required in respect of development (in this section referred to as “proposed development”) to which subsection (3) of section 181 applies, the Minister concerned (in this section referred to as the “Minister concerned”) within the meaning of that subsection shall prepare, or cause to be prepared, a Natura impact statement in respect thereof.”]
(II) in the section, other than as modified under clause (I), “Minister concerned” were substituted for “local authority”,
(III) in subsections (4)(b) and (5)(d)(ii), “prescribed authorities” and “prescribed authority” includes the local authority within whose functional area the proposed development is to be carried out, and
(IV) any other necessary modifications have been made,
(iii) F1011[…]
F998[(e) Where an application is made to the Board under this subsection, or where further information is required by and furnished to the Board in relation to an application made under this subsection, the Minister concerned shall at the same time forward a copy of the application, any environmental impact assessment report or Natura impact statement prepared in relation to the application and any further information provided in relation to the application, to—
(i) the planning authority in whose functional area it is proposed to carry out the development, or
(ii) in the case of an application for approval for development in the outer maritime area, the Maritime Area Regulatory Authority,
and the Board, and the planning authority or the Maritime Area Regulatory Authority (as may be appropriate), shall as soon as may be thereafter, publish on their internet websites and make available for inspection at their offices during normal office hours—
(I) the application,
(II) any environmental impact assessment report,
(III) any Natura impact statement, and
(IV) any such further information.]
(f) Any matter or thing prescribed—
(i) under section 175 or 176 shall apply as required to an application for approval for proposed development referred to at subparagraph (i) of paragraph (d),
(ii) under section 177AD or 177AE shall apply as required to an application for approval for proposed development referred to at subparagraph (ii) of paragraph (d), or
(iii) under section 175, 176 or 226 shall apply as required to an application for approval for proposed development referred to at subparagraph (iii) of paragraph (d).
(g) The Board shall consider an application made in compliance with this subsection and shall make its decision as expeditiously as possible.
(h) Section 32 or 225, as appropriate, shall not apply to a development in relation to which, under this subsection, the Board approves an application with or without modification.]
Annotations
Amendments:
F996
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 35(a), S.I. No. 684 of 2006.
F997
Deleted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 35(b), S.I. No. 684 of 2006.
F998
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 44, S.I. No. 488 of 2022.
F999
Substituted (6.08.2019) by European Union (Environmental Impact Assessment and Habitats) (Section 181 of the Planning and Development Act 2000) Regulations 2019 (S.I. No. 418 of 2019), reg. 4(a)(i).
F1000
Substituted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 9(a)(i), S.I. No. 365 of 2021.
F1001
Inserted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 9(a)(ii), S.I. No. 365 of 2021.
F1002
Inserted (6.08.2019) by European Union (Environmental Impact Assessment and Habitats) (Section 181 of the Planning and Development Act 2000) Regulations 2019 (S.I. No. 418 of 2019), reg. 4(a)(ii), (b).
F1003
Substituted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 9(b)(i)(I), (II), (IV), S.I. No. 365 of 2021.
F1004
Inserted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 9(b)(i)(III), (ii), S.I. No. 365 of 2021.
F1005
Substituted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 9(c)-(e), S.I. No. 365 of 2021.
F1006
Inserted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 4(a)(i)-(v).
F1007
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 44, S.I. No. 488 of 2022.
F1008
Substituted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 4(b), (c).
F1009
Inserted (21.10.2013) by European Union (Environmental Impact Assessment and Habitats) (Section 181 of the Planning and Development Act 2000) Regulations 2013 (S.I. No. 403 of 2013), reg. 2.
F1010
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. 84, in effect as per reg. 2(1).
F1011
Deleted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 44, S.I. No. 488 of 2022.
Modifications (not altering text):
C163
Functions in relation to section transferred (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3 and sch. 1.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
Schedule 1 Enactments
…
No. 30 of 2000
Planning and Development Act 2000
Sections 80, 116, 117, 120(2) and 181
…
C164
Application of regulations made under section restricted (1.05.2007) by Prisons Act 2007 (10/2007), s. 28(1)(b)(i), S.I. No. 180 of 2007.
Exemptions, etc., relating to development.
28.—(1) A development— …
(b) is not subject to—
(i) regulations under section 181 of the Planning and Development Act 2000,
…
C165
Application of subs. (1) restricted by Courts Service Act 1998 (8/1998), s. 33 as substituted (10.04.2002) by Courts and Courts Officers Act 2002 (15/2002), s. 44, commenced on enactment .
Service deemed State authority for planning and development purposes.
33.—(1) The Service shall be deemed to be a State authority for the purposes of section 181(1) of the Act of 2000.
(2) (a) Notwithstanding subsection (1) of section 181 of the Act of 2000 or any regulations made under that subsection which provide for the giving of any specified notice with respect to proposed development consisting of the provision of temporary courthouses, it shall be necessary to give such notice of such proposed development once only.
…
(3) Where development is proposed to be carried out by or on behalf of the Service, the Minister may, if he or she is satisfied that the carrying out of the development is required by reason of an accident or emergency, by order provide that the Act of 2000 or, as may be appropriate, any requirement or requirements of regulations under section 181(1)(b) of the Act of 2000 specified in the order, shall not apply to the development, and for so long as such an order is in force the Act of 2000 or the said requirement or requirements, as the case may be, shall not apply to the development.
…
Editorial Notes:
E387
Power pursuant to subs. (2)(a) exercised (16.12.2022) by Planning and Development act 2000 (Section 181(2)(a)) (No. 2) Order 2022 (S.I. No. 694 of 2022).
E388
Power pursuant to subs. (2)(a) exercised (22.09.2022) by Planning and Development Act 2000 (Section 181(2)(a)) Order 2022 (S.I. No. 478 of 2022).
E389
Power pursuant to subs. (2)(a) exercised (24.09.2020) by Planning and Development Act 2000 (Section 181(2)(a)) (No. 3) Order 2020(S.I. No. 371 of 2020).
E390
Power pursuant to subs. (2)(a) exercised (25.06.2020) by Planning and Development Act 2000 (Section 181(2)(a)) (No. 2) Order 2020 (S.I. No. 232 of 2020).
E391
Power pursuant to subs. (2)(a) exercised (25.06.2020) by Planning and Development Act 2000 (Section 181(2)(a)) Order 2020 (S.I. No. 231 of 2020).
E392
Power pursuant to subs. (1) exercised (27.03.2020 to 9.11.2020) by Planning and Development Act 2000 (Section 181) Regulations 2020 (S.I. No. 93 of 2020).
E393
Power pursuant to subs. (2)(a) exercised (24.10.2019) by Planning and Development Act 2000 Section 181(2)(a) (No. 5) Order 2019 (S.I. No. 521 of 2019).
E394
Power pursuant to subs. (2)(a) exercised (1.07.2019) by Planning And Development Act, 2000 Section 181(2)(a) Order No. 4 2019 (S.I. No. 285 of 2019).
E395
Power pursuant to subs. (2)(a) exercised (1.07.2019) by Planning And Development Act, 2000 Section 181(2)(a) Order No. 3 2019 (S.I. No. 284 of 2019).
E396
Power pursuant to subs. (2)(a) exercised (10.03.2019) by Planning And Development Act, 2000 Section 181(2)(A) Order No. 2 2019 (S.I. No. 100 of 2019).
E397
Power pursuant to subs. (2)(a) exercised (11.02.2019) by Planning And Development Act, 2000 Section 181(2)(A) Order No. 1 2019 (S.I. No. 57 of 2019).
E398
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E399
Previous affecting provision: subs. (3)(e) amended (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. 85, 86, in effect as per reg. 2(1); substituted (1.10.2022 as per F-note above.
F1012[
Approval of certain State development requiring environmental impact assessment.
181A.—(1) F1013[Subject to section 181B(4) and (4A)], where a State authority proposes to carry out or have carried out development—
(a) of a class specified in regulations made under section 181(1)(a), and
F1013[(b) identified as likely to have significant effects on the environment in accordance with section 176 or, in respect of such development not directly connected with or necessary to the management of a European site, likely to have a significant effect either individually or in combination with other plans or projects on a European site in accordance with section 177U,]
(hereafter referred to in this section and sections 181B and 181C as “proposed development”), the authority shall prepare, or cause to be prepared, an application for approval of the development under section 181B and an F1014[F1015[environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be,] in respect of the development and shall apply to the Board for such approval accordingly.
(2) F1013[Subject to section 181B(4) and (4A)], the proposed development shall not be carried out unless the Board has approved it with or without modifications.
(3) Before a State authority makes an application for approval under subsection (1), it shall—
(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—
(i) stating that—
(I) it proposes to seek the approval of the Board for the proposed development,
(II) an F1014[F1016[environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be,] has been prepared in respect of the proposed development,
(III) where relevant, the proposed development is likely to have significant effects on the environment in another Member State of the European Communities or other party to the Transboundary Convention,
(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the F1014[F1017[environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be,] may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),
(iii) inviting the making, during such period, of submissions and observations to the Board relating to—
(I) the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and
(II) the likely F1014[effects on the environment or adverse effects on the integrity of a European site, as the case may be,] of the proposed development,
if carried out, and
(iv) specifying the types of decision the Board may make, under section 181B, in relation to the application,
F1018[(v) stating that a person may question the validity of a decision of the Board by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and
(vi) stating where practical information on the review mechanism can be found.]
(b) send a copy of the application and the F1014[F1019[environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be,] to the local authority or each local authority in whose functional area the proposed development would be situate and to any prescribed bodies, together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—
(i) the implications of the proposed development for proper planning and sustainable development in the area concerned, and
(ii) the likely F1014[effects on the environment or adverse effects on the integrity of a European site, as the case may be,] of the proposed development,
if carried out, and
(c) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the F1020[environmental impact assessment report] to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.
(4) The Board may—
(a) if it considers it necessary to do so, require a State authority that has applied for approval for a proposed development to furnish to the Board such further information in relation to the effects on proper planning and sustainable development or the environment of the proposed development as the Board may specify, or
(b) if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the State authority that it is of that view and invite the State authority to make to the terms of the proposed development alterations specified in the notification and, if the State authority makes those alterations, to furnish to it such information (if any) as it may specify in relation to the development, in the terms as so altered, or, where necessary, a F1014[F1021[revised environmental impact assessment report or revised Natura impact statement or both that report and that statement], as the case may be,] in respect of it.
(5) If a State authority makes the alterations to the terms of the proposed development specified in a notification given to it under subsection (4), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of this section and section 181B.
(6) The Board shall—
(a) where it considers that any further information received pursuant to a requirement made under subsection (4)(a) contains significant additional data relating to—
(i) the likely F1014[effects on the environment or adverse effects on the integrity of a European site, as the case may be,] of the proposed development, and
(ii) the likely consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,
or
(b) where the State authority has made the alterations to the terms of the proposed development specified in a notification given to it under subsection (4)(b),
require the State authority to do the things referred to in subsection (7).
(7) The things which a State authority shall be required to do as aforesaid are—
(a) to publish in one or more newspapers circulating in the area or areas in which the proposed development would be situate a notice stating that, as appropriate—
(i) further information in relation to the proposed development has been furnished to the Board, or
(ii) the State authority has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a F1014[F1022[revised environmental impact assessment report or revised Natura impact statement or both that report and that statement], as the case may be,] in respect of the development has been furnished to the Board,
indicating the times at which, the period F1023[(which shall not be less than 3 weeks in a case other than a case relating to a revised environmental impact assessment report)] during which and the place, or places, where a copy of the F1024[information or the environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be, referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to F1025[that information, report or statement] may be made to the Board before the expiration of the indicated period, and
(b) to send to each prescribed authority to which a notice was given pursuant to subsection (3)(b) or (c)—
(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the F1026[information, report or statement] referred to in paragraph (a)(ii), and
(ii) a copy of that further information, F1027[information, report or statement],
and to indicate to the authority that submissions or observations F1028[in relation to that further information, information, report or statement] may be made to the Board before the expiration of a period F1029[(which shall not be less than 3 weeks in a case other than a case relating to a revised environmental impact assessment report)] beginning on the day on which the notice is sent to the prescribed authority by the State authority. ]
F1030[(8) The period referred to in subsection (7)(a) or (b) shall, in a case relating to a revised environmental impact assessment report, not be less than—
(a) 30 days where the report has been furnished to the Board, and
(b) 3 weeks where the report has not been furnished to the Board.]
Annotations
Amendments:
F1012
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 36, S.I. No. 684 of 2006.
F1013
Substituted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 5(a)(i), (ii), (b).
F1014
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 37, S.I. No. 474 of 2011.
F1015
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. 87, in effect as per reg. 2(1).
F1016
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. 88, in effect as per reg. 2(1).
F1017
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. 89, in effect as per reg. 2(1).
F1018
Inserted (13.07.2010) by European Communities (Public Participation) Regulations 2010 (S.I. No. 352 of 2010), reg. 10(d).
F1019
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36, sch. 1 table item 90, in effect as per reg. 2(1).
F1020
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. 91, in effect as per reg. 2(1).
F1021
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. 92, in effect as per reg. 2(1).
F1022
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. 93, in effect as per reg. 2(1).
F1023
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 28(a)(i), in effect as per reg. 2(1).
F1024
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. 94, in effect as per reg. 2(1).
F1025
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. 95, in effect as per reg. 2(1).
F1026
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. 96, in effect as per reg. 2(1).
F1027
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. 97, in effect as per reg. 2(1).
F1028
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. 98, in effect as per reg. 2(1).
F1029
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 28(a)(ii), in effect as per reg. 2(1).
F1030
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 28(b), in effect as per reg. 2(1).
Modifications (not altering text):
C166
“Proposed development” construed (23.06.2022) by European Union (Planning and Development) (Displaced Persons From Ukraine Temporary Protection) Regulations 2022 (S.I. No. 306 of 2022), reg. 3(2) and sch.
3. (1) The Act of 2000 (other than sections 181A to 181C) shall not apply to the classes of development specified in the Schedule carried out by, or on behalf of, a State authority during the relevant period for the purposes of providing temporary protection to displaced persons.
(2) A reference to “proposed development” in sections 181A to 181C of the Act of 2000 shall include a reference to development of a class specified in the Schedule to which section 181A(1) of the Act of 2000 would apply if it was development of a class specified in regulations made under section 181(1)(a) of the Act of 2000.
SCHEDULE
Article 3
1. Reception and integration facilities.
2. Residential accommodation, including ancillary recreational and sporting facilities.
3. Medical and other health and social care accommodation.
4. Education and childcare facilities, including ancillary recreational and sporting facilities.
5. Emergency management coordination facilities.
6. Structures or facilities ancillary to development referred to in paragraphs 1 to 5, including administration and storage facilities.
7. Infrastructure and other works ancillary to development referred to in paragraphs 1 to 6.
C167
Application of Act restricted (27.03.2020 for relevant period) by Planning and Development Act 2000 (Section 181) Regulations 2020 (S.I. No. 93 of 2020).
2. In these Regulations “relevant period” means the period commencing on the making of these Regulations and ending on the day on which Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (No. 1 of 2020) ceases to have effect by virtue of subsection (3) of section 2 of that Act.
3. The Planning and Development Act 2000 (other than section 181) shall not apply to the classes of development specified in the Schedule carried out by, or on behalf of, a State authority during the relevant period.
SCHEDULE
Classes of development to which Planning and Development Act 2000 (other than section 181) shall not apply
acute and other health and social care accommodation
self-isolation or other Covid-19 related short stay accommodation
Covid-19 and other step down accommodation
medical testing centre or laboratory
emergency management coordination facilities
mortuary facilities
ancillary and other accommodation including storage facilities
ancillary infrastructure and other works to support the above development
C168
Application of Act extended (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 20(2), S.I. No. 403 of 2019.
Noise insulation scheme
20. …
(2) Subject to subsection (3), on and after the relevant day, a scheme shall be deemed to be a noise mitigation measure introduced by the competent authority and the provisions of this Act and the Act of 2000 shall, with all necessary modifications, apply to the scheme accordingly.
(3) On and after the relevant day, the competent authority shall ensure that the scheme applies to all homes located within the relevant noise contours.
C169
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.
…
C170
Application of collectively cited Planning and Development Acts 2000 to 2016 restricted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 4(1), S.I. No. 270 of 2017.
Strategic housing developments and planning applications
4. (1) Subject to subsection (4), during the specified period and notwithstanding anything to the contrary contained in any other provision of the Planning and Development Acts 2000 to 2016—
(a) an application for permission for a strategic housing development shall—
(i) be made to the Board under this section and not to a planning authority, other than an application for permission, the purpose of which is as set out in section 34(3A) of the Act of 2000,
(ii) be so made only where section 6(7)(b) applies or, in the case that a request is made under section 7(1), when the Board has complied with the request pursuant to section 7(2),
(iii) be so made only where the applicant for permission has fulfilled the requirements set out in section 8,
(iv) be in such form and contain such information as is prescribed, and
(v) be accompanied by the appropriate fee,
and
(b) a copy of the application, shall be sent by the applicant to the planning authority or authorities in whose area or areas the proposed strategic housing development would be situated.
…
C171
Certain functions of Board restricted (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 11(3), S.I. No. 270 of 2017.
Strategic Housing Division
11. …
(3) The Strategic Housing Division shall, subject to subsections (8), (9) and (10), determine any matter falling to be determined by the Board under the Planning and Development Acts 2000 to 2016 in relation to strategic housing development other than development to which section 4 (4) relates.
…
C172
Act applied with modifications (8.02.2016) by Dublin Transport Authority Act 2008 (15/2008), s. 44(6)(iii), as substituted by Public Transport Act 2016 (3/2016), s. 1(b)(iii), commenced on enactment.
Functions of Authority in relation to public transport infrastructure
44. —…
[(6) Where —
(a) a decision is made by the Authority under subsection (2)(b) or (5)(a) for the performance of a particular function otherwise than through a public transport authority or statutory body, or
(b) the Authority is performing its function of securing the provision of public transport infrastructure in accordance with subsection (2)(e),
the following provisions have effect —
(i) the Authority shall be empowered (notwithstanding any other enactment) to perform the function, including the acquisition of land for that purpose, and to do any other thing which arises out of or is consequential on or is necessary for the purposes of or would facilitate the performance of the function,
(ii) for the purpose of paragraph (a) or (b), land may be acquired by agreement or by means of a compulsory purchase order made by the Authority in accordance with Part XIV of the Act of 2000,
(iii) the provisions of any enactment concerned apply in relation to the performance of the function subject to such modifications as may be necessary and as if the Authority was named in such enactment in each place where a public transport authority or other statutory body entitled to exercise the function is named, and
…]
C173
Functions to be performed by municipal district members and local authorities prescribed (1.06.2014) by Local Government Act 2001 (37/2001), ss. 131, 131A and sch. 14A parts 1-3, as inserted by Local Government Reform Act 2014 (1/2014), s. 21(4) and sch. 3, S.I. No. 214 of 2014.
SCHEDULE 14A
Section 131 and 131A
PART 1
Reserved Functions to be Performed, Subject to Section 131A(4), by Municipal District Members
Reference No.
(1)
Description of reserved function
(2)
Provision under which reserved function is conferred
(3)
…
…
…
30
Making, or refusing to make, or revocation or amendment of, a tree preservation order.
Section 205 of the Act of 2000.
…
…
…
PART 2
Reserved Functions that May be Performed under Section 131A(1) (b) in Respect of a Municipal District by Municipal District Members or the Local Authority
Reference No.
(1)
Description of reserved function
(2)
Provision under which reserved function is conferred
(3)
…
…
…
11
Approving a proposal of the chief executive to grant permission for the development of land which would contravene materially the development plan or local area plan.
Section 34 (as amended by Schedule 2 to the Local Government Reform Act 2014) of the Act of 2000.
12
A decision in relation to the making, amendment or revocation of a local area plan within the meaning of the Act of 2000.
Section 20 (as amended by section 9 of the Planning and Development (Amendment) Act 2002 and section 13 of the Planning and Development (Amendment) Act 2010 ) of the Act of 2000.
13
The making of an addition to, or a deletion from, a record of protected structures to which Part IV of the Act of 2000 relates.
Section 54 of the Act of 2000.
14
Approving, amending or revoking a special planning control scheme.
Section 85 and 86 of the Act of 2000.
15
Deciding to vary or modify a proposed local authority own development, or deciding not to proceed with the development.
Section 179 of the Act of 2000.
16
Making, or refusing to make an order creating a public right of way over any land.
Section 207 of the Act of 2000.
17
Deciding to vary or modify, or not to proceed with, an event proposed to be carried out by a local authority.
Section 238 of the Act of 2000.
…
…
…
PART 3
Reserved Functions to be Performed by the Local Authority
Reference No.
(1)
Description of reserved function
(2)
Provision under which reserved function is conferred
(3)
…
…
…
32
Making an order to declare an area to be an area of special amenity.
Section 202 of the Act of 2000.
33
Making, or refusing to make, or revocation or amendment of, an order designating any area or place as a landscape conservation area.
Section 204 of the Act of 2000.
…
…
…
52
The making and amending of a scheme which determines the order of priority for allocation of affordable houses provided under Part V of the Planning and Development Act 2000 .
Section 98 of the Act of 2000.
…
…
…
69
The making of a development plan and making or refusing to make a variation of a development plan which for the time being is in force.
Sections 9, 12 and 13 of the Act of 2000.
70
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.
Section 44 of the Act of 2000.
71
Making a development contribution scheme.
Section 48 of the Act of 2000.
72
Making or amending a supplementary development contribution scheme.
Section 49 of the Act of 2000.
73
Deciding to make, subject to variations and modifications, or deciding not to make a draft planning scheme for strategic development zones.
Section 169 (as amended by section 51 of the Planning and Development (Amendment) Act 2010 ) of the Act of 2000.
74
Amending or revoking a planning scheme for strategic development zones.
Section 171 of the Act of 2000.
75
Adoption by a planning authority of a code of conduct for dealing with conflicts of interest and promoting public confidence in the integrity of the conduct of its business.
Section 150 of the Act of 2000.
76
Making or terminating of an agreement by two or more planning authorities for sharing the cost of performing functions under the Planning and Development Act 2000 .
Section 244 of the Act of 2000.
…
…
…
C174
References to a “sanitary authority” construed as “Irish Water” (1.01.2014) by Water Services (No. 2) Act 2013 (50/2013), ss. 6, 7(4), S.I. No. 575 of 2013.
Transfer day
6.— The Minister shall, by order, appoint a day to be the transfer day for the purposes of this Act.
Transfer of functions from water service authorities to Irish Water
7.— …
(4) References to a sanitary authority in any enactment or instrument under any enactment shall, on and after the transfer day, in so far as they relate to any function transferred by subsection (3), be construed as references to Irish Water.
…
C175
References to “county council”, “city council”, “town council” and “regional assemblies” construed (1.06.2014) by Local Government Reform Act 2014 (1/2014), ss. 9(2), 25(2) and 62(2), S.I. No. 214 of 2014.
Cesser and amalgamation of certain local government areas
9.— …
(2) Except where otherwise provided for by this Act, a reference, however expressed, in any enactment—
(a) to a county council or a city council (including a reference construed by section 3(2) of, and Schedule 2 to, the Principal Act as a reference to a county council or to a city council, as the case may be) shall, if the context permits, be read as a reference to a county council, a city council or a city and county council, and
(b) to a county council and a city council (including a reference so construed) shall, if the context permits, be read as a reference to a county council, a city council and a city and county council.
…
Dissolution of town councils — consequential provisions
25.— …
(2) A function of a town council (including a reference construed by section 3(2) of, and Schedule 2 to, the Principal Act as a reference to a town council and whether of general application to town councils or otherwise under an enactment) that—
(a) has not been repealed or otherwise provided for by this Act, or
(b) is neither spent nor obsolete,
shall, if the context permits in respect of one or more than one town council concerned, be read as a reference to a function of the local authority in whose administrative area the town council so dissolved is situated.
…
Regional assemblies
62.— …
(2) The bodies established by the Local Government Act 1991 (Regional Authorities) (Establishment) Order 1999 (S.I. No. 226 of 1999) which are subsisting at the commencement of this section shall upon such commencement continue in being until dissolved or replaced under a provision of an establishment order and be known or continue to be known, as the case may be, as regional assemblies and accordingly—
(a) subject to paragraph (b) that order shall continue to apply to each of them as it applied before such commencement and that order may be amended or revoked under this section,
(b) references in any enactment to regional authorities within the meaning of section 43 (as amended by this Act) of the Local Government Act 1991 shall, where the context admits, be read as references to regional assemblies,
…
C176
Application of Act extended (29.03.2013) by Water Services Act 2013 (6/2013), s. 21(2), S.I. No. 108 of 2013.
Installation of pipes.
21.— …
(2) For the avoidance of doubt, the provisions of the Planning and Development Act 2000 shall apply to a metering authority as, by virtue of subsection (12) of section 41 of the Act of 2007, they apply to a water services authority.
C177
Provision made as to costs of proceedings under Act (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), ss. 3, 4, 6, 7, S.I. No. 433 of 2011, art. 2(a).
Costs of proceedings to be borne by each party in certain circumstances.
3.— (1) Notwithstanding anything contained in any other enactment or in— …
and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.
(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so—
(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,
(b) by reason of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the court.
(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to “court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.
C178
Application of Act restricted (24.12.2006) by Energy (Miscellaneous Provisions) Act 2006 (40/2006), s. 22(4), (5) and (6), commenced on enactment.
Certain development approvals under Part XI of Planning and Development Act 2000.
22.— …
(4) Nothing in section 182C or any other provision of the Act of 2000 shall be read as meaning that, notwithstanding the permission granted under section 34 of the Act of 2000 in respect of that terminal before such commencement, a permission—
(a) under section 34 or 37G of the Act of 2000, and
(b) granted after the commencement of the amendments of that Act made by the Act of 2006,
is required, either in circumstances generally or in the circumstances referred to in subsection (5), in respect of the terminal referred to in subsection (6).
(5) The circumstances mentioned in subsection (4) are that an application is made under section 182C in relation to a development which, if it is carried out, will consist of the alteration or modification of the terms of the strategic gas infrastructure development referred to in subsection (6) other than the terms of that development that comprise the terminal referred to in that subsection.
(6) The terminal mentioned in subsections (4) and (5) is a terminal comprised in a strategic gas infrastructure development (within the meaning of the Act of 2000) the pipeline comprised in which development has been the subject of a consent referred to in subsection (3)(iii)(I).
C179
Application of Act restricted by Environmental Protection Agency Act 1992 (7/1992), s. 99F(1) as substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004.
[Application of other Acts.
99F.—(1) Notwithstanding section 34 of the Act of 2000, or any other provision of that Act, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 of that Act in respect of any development comprising or for the purposes of the activity, subject the permission to conditions which are for the purposes of—
(a) controlling emissions from the operation of the activity, including the prevention, elimination, limitation, abatement, or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation of the activity.
…]
C180
Powers and functions in relation to Act transferred (10.07.2002) by Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2002 (S.I. No. 356 of 2002), arts. 3, 4(1) and sch. part 1.
3. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 4 of this Order are transferred to the Department of the Environment and Local Government.
(2) References to the Department of Community, Rural and Gaeltacht Affairs contained in any Act or instrument made thereunder and relating to any administration and business transferred by paragraph (1) of this Article shall, on and after the commencement of this Order, be construed as references to the Department of the Environment and Local Government.
4. (1) The functions vested in the Minister for Community, Rural and Gaeltacht Affairs —
(a) by or under any of the instruments or the provisions of the enactments mentioned in Part 1 of the Schedule to this Order,
(b) under the Regulations mentioned in Part 2 of that Schedule, and …
are transferred to the Minister for the Environment and Local Government.
…
Schedule Part 1
Enactments and provisions of enactments, functions under which are transferred from the Minister for Community, Rural and Gaeltacht Affairs to the Minister for the Environment and Local Government
…
Planning and Development Act 2000 (No. 30 of 2000) (in so far as it relates to or refers to the Minister for Community, Rural and Gaeltacht Affairs (except section 33 (3)(c)))
…
Part 2
Regulations, functions under which are transferred from the Minister for Community, Rural and Gaeltacht Affairs to the Minister for the Environment and Local Government
Planning and Development Regulations 2001 ( S.I. No. 600 of 2001 ) (in so far as they relate to or refer to the Minister for Community, Rural and Gaeltacht Affairs (except Article 28 (1)(n) Article 82 (3)(m), Article 121 (1)(m) and Article 179 (2)(p)))
…
C181
Application of Act restricted (23.12.2001) by Transport (Railway Infrastructure) Act 2001 (55/2001), s. 39(4), commenced on enactment, as substituted (1.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 49(b), S.I. No. 684 of 2006.
[Environmental impact statement.
39.— …
(4) The European Communities (Environmental Impact Assessment) Regulations 1989 to 2005 and the Act of 2000 and any regulation made thereunder in relation to environmental impact assessment shall not apply to anything done under an order made under this Act.]
Editorial Notes:
E400
Power pursuant to section exercised (1.01.2014) by Planning and Development (Amendment) (No. 2) Regulations 2013 (S.I. No. 520 of 2013).
E401
Previous affecting provision: subs. (1)(b) amended (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 37, S.I. No. 474 of 2011; para. (b) substituted (20.12.2022) as per F-note above.
E402
Previous affecting provision: substitutions made by Planning and Development (Amendment) Act 2010 (30/2010), s. 60, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
F1031[
Section 181A: criteria for decision, certain exemptions, etc.
181B.— (1) Before making a decision in respect of a proposed development the subject of an application under section 181A, the Board shall consider—
(a) the F1032[F1033[environmental impact assessment report or Natura impact statement or both that report and that statement], as the case may be,] submitted pursuant to section 181A(1) or (4), any submissions or observations made in accordance with section 181A(3) or (7) and any other information furnished in accordance with section 181A(4) relating to—
(i) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the proposed development of such development, and
(ii) the likely F1032[effects on the environment or adverse effects on the integrity of a European site] of the proposed development,
and
(b) the report and any recommendations of a person conducting any oral hearing relating to the proposed development.
F1034[(2)(a) The Board may take the action specified in paragraph (b) where it is satisfied that—
(i) exceptional circumstances so warrant,
(ii) the application of the requirement to prepare an environmental impact assessment report would adversely affect the purpose of the proposed development, and
(iii) the objectives of the Environmental Impact Assessment Directive are otherwise met.
(b) Subject to paragraph (c), the Board may grant in respect of the proposed development an exemption from a requirement under section 181A(1) to prepare an environmental impact assessment report.
(c) No exemption may be granted under paragraph (b) in respect of the proposed development where another Member State of the European Union or a state which is a party to the Transboundary Convention, having been informed about the proposed development and its likely significant effects on the environment in that State or state, as the case may be, has indicated that it wishes to furnish views on those effects.
(d) F1035[…]]
(3) The Board shall, in granting an exemption under subsection (2), consider whether—
(a) F1032[the effects, if any of the proposed development on the environment F1035[…]] should be assessed in some other manner, and
(b) the information arising from such an assessment should be made available to the members of the public,
and it may apply such requirements regarding these matters in relation to the application for approval as it considers necessary or appropriate.
F1037[(4) The Minister for Defence may, where he or she is satisfied that a proposed development or part of a proposed development is for the sole purpose of national defence, declare that the proposed development or relevant part of the proposed development is exempt from a requirement under section 181A(1), arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that the application of section 181A or 181C would have adverse effects on such purpose.]
F1038[(4A) A Minister of the Government may, where he or she is satisfied that a proposed development or part of a proposed development is for the sole purpose of responding to a civil emergency, declare that the proposed development or relevant part of the proposed development is exempt from a requirement under section 181A(1), arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that the application of section 181A or 181C would have adverse effects on such purpose.]
(5) Notice of any exemption granted under subsection (2) F1035[…], of the reasons for granting the exemption and, where appropriate, of any requirements applied under subsection (3) shall, as soon as may be—
(a) be published in Iris Oifigiúil and in at least one daily newspaper published in the State, and
(b) be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (3), to the Commission of the European Communities.
F1038[(5A) Notice of any exemption granted under subsection (4) or (4A) shall, as soon as may be, be published in Iris Oifigiúil and in at least one daily newspaper published in the State.]
(6) F1039[The Board shall, in respect of an application under section 181A for approval of proposed development, make its decision within a reasonable period of time and may, in respect of such application]—
(a) approve the proposed development,
(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,
(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or
(d) refuse to approve the proposed development,
and may attach to an approval under paragraph (a), (b) or (c) such conditions as it considers appropriate.
F1040[(6A) A decision of the Board under subsection (6) shall state—
(a) the reasoned conclusion, in relation to the significant effects on the environment of the proposed development, on which the decision is based,
(b) in relation to the approval of, or refusal to approve, the development, where a decision (being a decision which arises from the consideration of the environmental impact assessment report concerned) by the Board to approve or to refuse to approve such development is different from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the main reasons for not accepting the recommendation in the last-mentioned report to approve or refuse to approve the development,
(c) where a decision to impose a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report concerned) in relation to any approval is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on the application for approval on behalf of the Board, the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition, and
(d) in relation to the approval of, or refusal to approve, the development, subject to or without conditions, that the Board is satisfied that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision.
(6B) A decision given under subsection (6) and the notification of the decision shall include a summary of the results of consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.]
(7) Without prejudice to the generality of the foregoing power to attach conditions, the Board may attach to an approval under subsection (6)(a), (b) or (c) a condition requiring—
(a) the construction or the financing, in whole or in part, of the construction of a facility, or
(b) the provision or the financing, in whole or in part, of the provision of a service,
in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.
(8) A condition attached pursuant to subsection (7) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the approval under this section operates of the benefits likely to accrue from the grant of the approval.
(9) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of consultations under section 181C or applications for approval under section 181A.
(10) Without prejudice to the generality of subsection (9), regulations under that subsection may make provision for requiring the Board to give information in respect of its decision regarding the proposed development for which approval is sought.
(11) In considering under subsection (1) information furnished relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, or on the environment, the Board shall have regard to—
F1041[(a) in the case of proposed development on land or partly on land and partly in the nearshore area of a coastal planning authority, the development plan for the area,]
F1042[(aa) in the case of proposed development wholly or partly in the maritime area, the National Marine Planning Framework,]
(b) the provisions of any special amenity area order relating to the area,
(c) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(d) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(e) where relevant, the matters referred to in section 143, and
(f) the provisions of this Act and regulations under this Act where relevant.
(12) Regulations made under section 181(1)(b) shall not apply to any development which is approved under this section.
(13) Nothing in this section or section 181A or 181C shall require the disclosure by a State authority or the Board of details of the internal arrangements of a development which might prejudice the internal or external security of the development or facilitate any unauthorised entrance to, or exit from, the development of any person when it is completed.
(14) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005, a reference, however expressed, in this section to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.]
Annotations
Amendments:
F1031
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 36, S.I. No. 684 of 2006.
F1032
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 38, S.I. No. 474 of 2011.
F1033
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. 99, in effect as per reg. 2(1).
F1034
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 29(a), in effect as per reg. 2(1).
F1035
Deleted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 6(a), (b), (e).
F1036
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 29(b), in effect as per reg. 2(1).
F1037
Substituted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 6(c).
F1038
Inserted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 6(d), (f).
F1039
Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 29(c), in effect as per reg. 2(1).
F1040
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 29(d), in effect as per reg. 2(1).
F1041
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 45, S.I. No. 488 of 2022.
F1042
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 45, S.I. No. 488 of 2022.
Modifications (not altering text):
C182
“Proposed development” construed (23.06.2022) by European Union (Planning and Development) (Displaced Persons From Ukraine Temporary Protection) Regulations 2022 (S.I. No. 306 of 2022), reg. 3(2) and sch.
3. (1) The Act of 2000 (other than sections 181A to 181C) shall not apply to the classes of development specified in the Schedule carried out by, or on behalf of, a State authority during the relevant period for the purposes of providing temporary protection to displaced persons.
(2) A reference to “proposed development” in sections 181A to 181C of the Act of 2000 shall include a reference to development of a class specified in the Schedule to which section 181A(1) of the Act of 2000 would apply if it was development of a class specified in regulations made under section 181(1)(a) of the Act of 2000.
SCHEDULE
Article 3
1. Reception and integration facilities.
2. Residential accommodation, including ancillary recreational and sporting facilities.
3. Medical and other health and social care accommodation.
4. Education and childcare facilities, including ancillary recreational and sporting facilities.
5. Emergency management coordination facilities.
6. Structures or facilities ancillary to development referred to in paragraphs 1 to 5, including administration and storage facilities.
7. Infrastructure and other works ancillary to development referred to in paragraphs 1 to 6.
C183
Application of section restricted (24.12.2006) by Energy (Miscellaneous Provisions) Act 2006 (40/2006), s. 22(3), commenced on enactment.
Certain development approvals under Part XI of Planning and Development Act 2000.
22.— …
(3) No approval shall be required under—
(a) section 181B,
…
in relation to development referred to in section 181A, 182A or 182C, respectively, if—
(i) in the case of development referred to in section 181A, a notification in respect of the development has been published, before the commencement of this section, in accordance with regulations under section 181(1)(b) of the Act of 2000 (whether or not the development has been commenced or completed before the commencement of this section),
(ii) in the case of development referred to in section 182A, the development has been the subject of—
(I) a grant of permission under section 34 of the Act of 2000 before the commencement of this section and that permission is in force immediately before such commencement, or
(II) an application made, before the commencement of this section, in accordance with the Act of 2000 and regulations thereunder for the grant of such a permission and that application does not stand withdrawn before the commencement of this section.
…
Editorial Notes:
E403
Previous affecting provision: subs. (4) substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 29(b), in effect as per reg. 2(1); substituted (20.12.2022) as per F-note above.
E404
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011 (S.I. No. 476 of 2011).
E405
Previous affecting provision: similar amendments to those made by 2011 Act made by Planning and Development (Amendment) Act 2010 (30/2010), s. 61, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
E406
Previous affecting provision: original versions of subs. (1)(a), (1)(a)(ii), (2), (3)(a) and (4) inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 36, S.I. No. 684 of 2006; substituted as per F-note above.
E407
Previous affecting provision: subs. (2), (4) amended (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 38(a), S.I. No. 474 of 2011; substituted as per F-note above.
F1043[
Procedures in advance of seeking approval under section 181B.
181C.— (1) A State authority (a “prospective applicant”) which proposes to apply for approval under section 181B shall, before making the application, enter into consultations with the Board in relation to the proposed development.
(2) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—
(a) the procedures involved in making the application, and
(b) what considerations, related to proper planning and sustainable F1044[development, the environment or a European site], may, in the opinion of the Board, have a bearing on its decision in relation to the application.
(3) A prospective applicant may request the Board—
F1045[(a) to make a determination of whether a development of a class specified in regulations made under section 181(1)(a) which it proposes to carry out or have carried out is likely to have significant effects on the environment in accordance with section 176 or, in respect of such a development not directly connected with or necessary to the management of a European site, is likely to have a significant effect either individually or in combination with other plans or projects on a European site in accordance with section 177U (and inform the applicant of the determination), or]
(b) to give to the applicant an opinion in writing prepared by the Board on what information will be required to be contained in an F1044[F1046[environmental impact assessment report or Natura impact statement or both that report and that statement] as the case may be] in relation to the proposed development.
(4) On receipt of such a request, the Board shall comply with it as soon as is practicable.
(5) A prospective applicant shall, for the purposes of—
(a) consultations under subsection (1), and
(b) the Board’s complying with a request under subsection (3),
supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.
F1047[(5A)(a) Without prejudice to subsection (5) and subject to paragraph (b), where a prospective applicant has made a request under subsection (3)(b) in relation to what information will be required to be contained in an environmental impact assessment report, the Board shall, after taking into account the information provided by the prospective applicant, in particular on the specific characteristics of the proposed development, including its location and technical capacity, and its likely impact on the environment, give an opinion in writing on the scope and level of detail of the information to be included in such report, subject to any consultations carried out by the Board in relation to such opinion.
(b) The Board shall give the opinion before the submission by the prospective applicant of the environmental impact assessment report.
(5B) Where an opinion referred to in subsection (5A) has been provided, the environmental impact assessment report shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects on the environment of the proposed development, taking into account current knowledge and methods of assessment.]
(6) Neither—
(a) the holding of consultations under subsection (1), nor
(b) the provision of an opinion under subsection (3),
shall prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act, or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.
(7) The Board shall keep a record in writing of any consultations under this section in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any application in respect of the proposed development relates.]
Annotations
Amendments:
F1043
Inserted (31.01.2007) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 36, S.I. No. 684 of 2006.
F1044
Substituted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 62, S.I. No. 475 of 2011.
F1045
Substituted (20.12.2022) by European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022 (S.I. No. 708 of 2022), reg. 7.
F1046
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. 100, in effect as per reg. 2(1).
F1047
Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 30, in effect as per reg. 2(1).
Modifications (not altering text):
C184
“Proposed development” construed (23.06.2022) by European Union (Planning and Development) (Displaced Persons From Ukraine Temporary Protection) Regulations 2022 (S.I. No. 306 of 2022), reg. 3(2) and sch.
3. (1) The Act of 2000 (other than sections 181A to 181C) shall not apply to the classes of development specified in the Schedule carried out by, or on behalf of, a State authority during the relevant period for the purposes of providing temporary protection to displaced persons.
(2) A reference to “proposed development” in sections 181A to 181C of the Act of 2000 shall include a reference to development of a class specified in the Schedule to which section 181A(1) of the Act of 2000 would apply if it was development of a class specified in regulations made under section 181(1)(a) of the Act of 2000.
SCHEDULE
Article 3
1. Reception and integration facilities.
2. Residential accommodation, including ancillary recreational and sporting facilities.
3. Medical and other health and social care accommodation.
4. Education and childcare facilities, including ancillary recreational and sporting facilities.
5. Emergency management coordination facilities.
6. Structures or facilities ancillary to development referred to in paragraphs 1 to 5, including administration and storage facilities.
7. Infrastructure and other works ancillary to development referred to in paragraphs 1 to 6.
C185
Transitional arrangements provided (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 3(1)(b)(i), in effect as per reg. 2(1).
Transitional arrangements
3. (1) Subject to paragraph (3), the Act of 2000 and the Regulations of 2001, as in force immediately before 1 September 2018, shall continue to apply to development or proposed development, as the case may be, in the following cases: …
(b) a request has been made, before 16 May 2017—
(i) under section 37D (1), 173(2)(a) or (3)(a), 181C(3)(b) or 182E(3) of the Act of 2000, as so in force, for an opinion to be given or provided by the planning authority or the Board, as the case may be, on the information required to be contained in an environmental impact statement relating to such development, or
…
(2) Section 2 of the Act of 2000, as in force immediately before 1 September 2018, shall apply to the interpretation of this Regulation as that section applies to the interpretation of that Act.
(3) The Act of 2000 and the Regulations of 2001, as in force on or after 1 September 2018, shall not apply to a case referred to in paragraph (1) unless otherwise specified in a provision of that Act or those Regulations, as the case may be.
(4) In this Regulation—
“Act of 2000” means the Planning and Development Act 2000 (No. 30 of 2000);
“Regulations of 2001” means the Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
Editorial Notes:
E408
Power pursuant to section exercised (3.06.2011) by Planning and Development (Amendment) Regulations 2011 (S.I. No. 262 of 2011).
E409
Previous affecting provision: subs. (3)(a) amended (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 62, S.I. No. 475 of 2011; para. (a) substituted (20.12.2022) as per F-note above.
Cables, wires and pipelines.
182.—(1) A local authority may, with the consent of the owner and occupier of any land not forming part of a public road, place, construct or lay, as may be appropriate, cables, wires or pipelines (including water pipes, sewers or drains) and any ancillary apparatus on, under or over the land, and may, from time to time, inspect, repair, alter, renew or remove any such cables, wires or pipelines.
F1048[(1A) A local authority shall not be eligible to apply for approval referred to in subsection (1) for development on a maritime site, and no such approval shall be given to a local authority, unless the local authority—
(a) is the holder of a maritime area consent granted for the occupation of the maritime site for the purposes of the proposed development,
(b) is the owner of land on which it is proposed to carry out the development concerned, or
(c) makes the application with the consent, or on behalf, of the owner of land on which it is proposed to carry out the development concerned.]
(2) A local authority may, with the consent of the owner and of the occupier of any structure, attach to the structure any bracket or other fixture required for the carrying or support of any cable, wire or pipeline placed, erected or constructed under this section.
(3) A local authority may erect and maintain notices indicating the position of cables, wires or pipelines placed, erected or constructed under this section and may, with the consent of the owner and of the occupier of any structure, affix such a notice to the structure.
(4) Subsections (1) to (3) shall have effect subject to the proviso that—
(a) a consent for the purposes of any of them shall not be unreasonably withheld,
(b) if the local authority considers that such a consent has been unreasonably withheld, it may appeal to the Board, and
(c) if the Board determines that such a consent was unreasonably withheld, it shall be treated as having been given.
(5) The local authority may permit the use of any cables, wires or pipelines placed, erected or constructed under this section and of any apparatus incidental to the cables, wires or pipelines subject to such conditions and charges as it considers appropriate.
Annotations
Amendments:
F1048
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 46, S.I. No. 488 of 2022.
Modifications (not altering text):
C186
Application of section extended and references construed (31.12.2007) by Water Services Act 2007 (30/2007), s. 41(12), S.I. No. 846 of 2007.
Installation of pipes.
41.— …
(12) Section 182 of the Act of 2000 shall apply to a water services authority for the purposes of this Act, and any references to a local authority in the said section or in Part XIV or related Parts of the Act of 2000 shall be deemed to be a reference to a water services authority for the purposes of this Act.
Cases
James Howard and Others v Commissioners of Public Works in Ireland
Sean Byrne and Others v Commissioners of Public Works in Ireland
1993 Nos. 40 and 22
Supreme Court
26 May 1993
[1993] I.L.R.M. 665
(Finlay CJ, O’Flaherty, Egan, Blayney and Denham JJ)
FINLAY CJ
delivered his judgment on 26 May 1993 saying: In certain proceedings by way of judicial review between James Howard and others as applicants, and the Commissioners of Public Works in Ireland as respondents (the Mullaghmore action) an order was made by Costello J in the High Court on 12 February 1993:
*667
1. Declaring that the development by the respondents of the Burren National Park Visitors’ Centre at Mullaghmore in the County of Clare was ultra vires.
2. That the aforesaid development was illegal by reason of there being no planning permission for such development.
3. That the respondents be restrained from proceeding with the development.
Against that order and decision the respondents (the commissioners) appealed, confining their appeal to an appeal against so much of the order as declared that the development was illegal by reason of there being no planning permission for such development.
In the course of his judgment leading to that portion of his decision, the learned trial judge rejected a claim made on behalf of the commissioners to the effect that the provisions of the Local Government (Planning and Development) Act 1963 requiring persons seeking to undertake a development within the meaning of those Acts to obtain planning permission from the appropriate authorities did not apply to the commissioners by reason of their being exempted from the application of that part of the Act as a ‘state authority’.
In certain separate proceedings brought pursuant to s. 27 of the Local Government (Planning and Development) Act 1976 by Sean Byrne and others against the Commissioners of Public Works (the commissioners) seeking an injunction to restrain them from continuing the development of an interpretative centre at Luggala, Roundwood, County Wicklow (the Luggala action), an order was made by Lynch J in the High Court on 27 November 1992 refusing the application. Amongst the grounds on which the learned trial judge refused the application in the course of a reserved judgment delivered on that day, was a decision by him that the provisions of the Local Government (Planning and Development) Act 1963, imposing on a person seeking to develop lands an obligation to apply for planning permission to the appropriate authority, did not apply to the Commissioners of Public Works as a state authority.
The applicants appealed against that decision and order on a number of grounds, including a ground directly related to the learned trial judge’s finding that the relevant sections of the Act of 1963 did not apply to the commissioners.
This Court having been satisfied of the extreme urgency of deciding the issue arising both in the Luggala and Mullaghmore actions concerning the application or non-application of the Act of 1963 to the commissioners, expedited the hearing of the appeal in the Mullaghmore case, and with the consent of all the parties, treated as a separate issue so much of the appeal in the Luggala case as dealt with the application of the Act of 1963 to the commissioners, and heard both these appeals, which were on a net point of law, together. This judgment deals, therefore, with the issues raised in both these actions.
The facts
The facts which were dealt with in the High Court in both these actions indicated *668 a major controversy between the objectors in each case to the development of the two interpretative centres and the proponents or supporters of that development.
Much sharply conflicting evidence was given in each case with regard to the environmental impact of the proposed development concerned. This Court has not got any right or function to make any decision concerning the issues thus arising, nor is it within its jurisdiction to express any view upon it.
The net issue before this Court on the submissions made in the High Court and on the hearing of this appeal has become a clear issue as to the interpretation of the Act of 1963 to be carried out in accordance with the appropriate legal principles.
The court is of course not in any way concerned with whether the application of the Planning Acts to the commissioners is or is not politically or socially desirable; that is a question exclusively reserved under the separation of powers for the legislature.
Statutory provisions relevant to the issues arising
S. 3(1) of the Act of 1963 provides as follows:
‘Development’ in this Act means, save where the context otherwise requires, the carrying out of any works on, in or under land, or the making of any material change in the use of any structures or other land.
S. 4(1) of the Act provides as follows:
The following shall be exempted developments for the purposes of this Act:
(a) developments consisting of the use of any land for the purposes of agriculture or forestry (including afforestation) and development consisting of the use for any of those purposes of any building occupied together with lands so used;
(b) development by the council of the county in the county health district;
(c) development by the corporation of a county or other borough in such borough;
(d) development by the council of an urban district in such district;
(e) development consisting of the carrying out by the corporation of a county or other borough or the council of a county or an urban district of any works required for the construction of a new road or the maintenance or improvement of a road;
….
(i) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act 1949.
….
*669
(2)(a) The minister may by regulations provide for any class of development, being exempted development for the purposes of this Act, and such provision may be either without conditions or subject to conditions either general or confined to a particular area or place.
S. 24 of the Act of 1963 provides as follows:
(1) Subject to the provisions of this Act permission shall be required under this Part of this Act
(a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day, and
….
(2) A person shall not carry out any development in respect of which permission is required by subsection (1) of this section, save under and in accordance with the permission granted under this Part of this Act.
S. 25 of the Act provides for the making by the minister (who is now the Minister for the Environment) of regulations providing for the grant of permission for the development of land, and such regulations have always included obligations on an applicant for permission to develop land to give notice in various ways to the public in general and to specific authorities and individuals of his application. The regulations also provide a right of objection by persons who are concerned with any proposed development to be made to the planning authority, and in the event of such persons being aggrieved by the decision of the planning authority, a right, as the statute has now been amended, of such objectors to appeal to An Bord Pleanála.
S. 84 of the Act of 1963 provides as follows:
(1) Before undertaking the construction or extension of any building (not being a building which is to be constructed or extended in connection with afforestation by the State) a state authority
(a) shall consult with the planning authority to such extent as may be determined by the minister, and
(b) if any objections that may be raised by the planning authority are not resolved, shall (save where the construction or extension is being undertaken by the minister) consult on the objections with the minister.
(2) In this section ‘state authority’ means any authority being
(a) a member of the government,
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission.
S. 90 of the Act of 1963 provides as follows:
Nothing in this Act shall restrict, prejudice or affect the functions of the Minister *670 for Finance or the Commissioners of Public Works in Ireland under the National Monuments Act 1930 and 1954 in relation to national monuments as defined by those Acts or any particular such monuments.
Part VI of the Act of 1963, commencing at s. 55, contains a scheme of compensation for land owners who have been refused permission to develop land for certain reasons and in certain circumstances.
S. 11 of the Interpretation Act 1937 provides:
The following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say:
….
(c) Person
The word ‘person’ shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual.
In the Act of 1963 as enacted, as distinct from the present planning law affected by subsequent amendments, in addition to the power by regulation of exempting development from the provisions of the Act already referred to and contained in s. 4, the Minister for Local Government as the minister then involved was given the following powers.
(a) Jurisdiction to hear and determine appeals from planning authorities (s. 26);
(b) Power to provide the necessary steps to be taken prior to the making of a planning application and, in particular, the necessary notice to be given (s. 25);
(c) Power to make requisitions to planning authorities concerning development plans either to co-ordinate them or to vary them (s. 22);
(d) Power to publish for the use and guidance of planning authorities general instructions in relation to the preparation of development plans (s. 23); and
(e) Power to consent, on the application of a planning authority, to a material contravention of the development plan (s. 26).
The decision in the Mullaghmore action
On the issue which arises in this appeal, Costello J in the course of his judgment on 12 February 1993, pointed out that prior to the decision of this Court in Byrne v Ireland [1972] IR 241‘it was an accepted constitutional principle that the State was not bound by statute unless by express terms in the enactment or by necessary implication’. He further stated his view that an acceptance of that position in 1963, when this statute was enacted, explained why s. 84 made the special provisions with regard to the construction of buildings by state agencies and expressed the view that it would follow that s. 84 was not intended to provide *671 (by implication) an exemption in favour of state authorities from s. 24 obligations, because under existing constitutional theory s. 24 did not apply to them.
He further recited that counsel for the commissioners agreed that that was so, and accepted that he should not construe the statute in the light of the mistaken view of the law prevailing in 1963.
He then expressed a difference of view from that expressed by Lynch J in Byrne v Commissioners of Public Works with regard to the question of the necessity for the court to avoid any conclusion that the legislation had no rational effect or was an absurdity, and also from, in effect, the consequential conclusion of Lynch J that s. 84 must, therefore, be construed as necessarily implying an exemption to state authorities from the provisions of s. 24. In this context, Costello J quoted from Maxwell on the Interpretation of Statutes , 12th ed., p. 212, the following paragraph:
It may be that the court will not agree that the words give rise to an absurdity, and even if they do give rise to an admittedly incongruous state of affairs, they may still be plain, in which case the court will have no option but to place on them their natural meaning.
The learned trial judge then continued to state the following conclusion:
Here the words of s. 84 are clear and unambiguous: if the result is that state authorities must apply for permission in all cases under s. 24 and consult in some cases under s. 84, this is not such an absurd result as to require the court to construe from it a legislative intent to exempt state authorities from the equally clear obligations imposed by s. 24 and, in effect, rewrite the section. Furthermore I do not think that I should infer that the legislature intended by this section to create the claimed exemption when, for the reasons already given, I think there is a reasonable inference that no such intention existed.
The learned trial judge, therefore, held that the applicants were entitled to the declaration which he granted to them of illegality for want of planning permission.
Decision of the High Court in the Luggala case
In the course of his judgment delivered on 27 November 1992 in this case, Lynch J, dealing with the question of the application of the 1963 Act to the state authorities, arrived at the following conclusions. He applied to the interpretation of the statute the rule of construction that the legislature is presumed to have intended its legislation to have some rational effect and that the court must seek out the legislature’s intention and give effect to it unless it seems impossible to infer with reasonable assurance what was the legislature’s intention.
Applying that principle, he, in effect, came to the conclusion that no rational *672 effect could be ascribed to the provisions of s. 84 of the Act of 1963 unless one construed it as necessarily implying the exclusion of state authorities from the obligation created by the statute to apply for planning permission for development in all cases, of every kind of development, substituting for that, in the particular instances provided for in s. 84, of the construction of buildings the limited consultation which is contained in that section.
In reaching this conclusion he relied upon what he described as a ‘convoluted course of futile consultations’ which would arise in the case of a state authority wishing to construct a building, and having at the same time an obligation to apply for planning permission to a planning authority which had under the terms of the 1963 Act a provision for appeal from their decision to the Minister for Local Government, and, under the terms of that Act, at the same time to enter into, either before or after such application, consultation with the planning authority to the extent that the Minister for Local Government should direct, and in the event of difference of opinion between the planning authority and the state authority involved concerning the construction of the building, to consult further with the Minister for Local Government if he was not the state authority involved. Having reached the conclusion that s. 84 must be construed as exempting the State from all the other provisions of the Act of 1963, the learned trial judge expressly declined to express any view on the question as to whether the former prerogative of the Crown, not being bound by statutes passed by the legislature unless expressly so provided, still applied in favour of the State.
Submissions on Appeal
On behalf of the commissioners
Broadly speaking, counsel on behalf of the commissioners supported the judgment of Lynch J, and in particular, supported and emphasised the anomalies and absurdities which would arise from an interpretation of s. 84 of the Act of 1963 as being a duty imposed on state authorities in respect of the construction of buildings in addition to and over and above an obligation imposed on them also by s. 24 of the Act.
In relation to the explanation afforded in the judgment of Costello J, that the legislature in 1963 may well have assumed that by virtue of the prerogative right derived from the right of the Crown that the statute did not apply to state agencies unless expressly applied, the following submissions were made:
(a) It was asserted that a consideration of that description was speculation as to the reasons preceding the enactment of the legislation rather than an inference as to the intention displayed by the legislation itself and as such was impermissible in our jurisprudence.
(b) It was submitted that to state, as the learned trial judge did, that as a result of the decision in Byrne v Ireland this Court had decided that the principle that *673 the State was not bound by statute unless by express enactment or necessary implication was no longer applicable was incorrect and that, properly interpreted, the decision merely set aside such principle in so far as it was alleged to have been derived from a royal prerogative but left open the question as to whether that principle could be derived from a general common law principle applicable to the interpretation of statutes.
(c) Counsel for the commissioners, however, did not seek to rely, as I understood the submissions made, upon any presumption of a general nature that the State was not subject to statutes enacted unless the statute in express terms made it applicable to the State, or unless by its terms and objects the statute necessarily implied an application of its provisions to the State. Rather, it was submitted that the precise provisions of s. 84 of the Act of 1963, having regard to the necessity for a court to try and interpret it so as to give to it a rational effect constituted a necessary implication of an exclusion of the state agencies from all other provisions of the Act of 1963.
Submissions on behalf of the objectors
Broadly speaking the objectors supported the decision of Costello J.
They contended that an interpretation of s. 84 which as a matter of policy imposed on the state agencies concerned a general obligation with regard to the construction of buildings for consultation with the planning authority and to the extent involved, with the Minister for the Environment, was a reasonable provision to avoid both the costs and expenses involved in an unsuccessful planning application and also the undesirability of state agencies being seen to propose developments which were inconsistent with the planning policies created by other state agencies which had been provided for under the Act of 1963.
Counsel for the objectors rejected the submission derived from the decision of Lynch J to the effect that in practice all persons applying for planning permission had the opportunity, and availed of it, of prior consultation with the planning authority before lodging a formal application as being irrelevant to the issue in this case since s. 84 imposed not merely a right but an absolute duty on the state agencies, in the cases to which it applied, to enter into this consultation.
Reliance was furthermore placed upon the clearcut provisions of s. 4 of the Act, in two ways.
Firstly, it was contended that having regard to the structure of the Act the universal application of the word development and the universal application of the provisions of s. 24, on the face of the terms of those two sections, that the provision in s. 4 for specific statutorily created exemptions, was such an obvious vehicle for the exemption of state agencies, if the legislature so intended, that it is extraordinary that they were not included in that section.
Secondly, with regard to s. 4(1)(i) it was submitted that the provisions of the *674 Land Reclamation Act 1949 refer only to one type of works, that is to say, works coming within the provisions of s. 2(1) of that Act, which reads as follows:
The minister may, at the request of the occupier of land, carry out works on the land and do all things necessary for this purpose.
If state agencies, which would, of course, include the Minister for Agriculture (being the minister referred to in the Act of 1949) were exempt from the provisions of the Act of 1963, this particular category of exempted development would be wholly unnecessary and superfluous.
With regard to s. 90 of the Act, it is again pointed out that if the provisions of the Act, other than s. 84, did not apply to the Commissioners of Public Works then this section preventing the provisions of the Act from restricting, prejudicing or affecting the function of the Commissioners of Public Works under the National Monuments Acts 1930 and 1954 in relation to national monuments would, again, be wholly superfluous.
Having heard all these submissions and having reserved its judgment the court upon consideration of the matter came to the conclusion that although it was apparently agreed, certainly in the Howard case before Costello J on behalf of the commissioners, that the question as to whether the Act of 1963 applied to the activity of the commissioners at Mullaghmore, fell to be decided in accordance with the ordinary principles applicable to the interpretation of statutes, that it was necessary for the court in the interests of justice to hear further submissions with regard to an issue which it, the court itself, raised as to whether the presumption against the application of general statutes to the State or to state authorities, unless the statutes were expressly or by necessary implication applied to them, was a principle of our law which survived the decision of this Court in Byrne v Ireland.
Upon the parties having been notified of the desire of the court to hear further submissions on this matter, further submissions were comprehensively made on behalf of both parties in both actions concerning the legal issues involved and, in particular, the court was given very considerable assistance with regard to the prevailing principles applicable to this question in other common law countries.
The decision
Presumption against application of statutes to the State
Obviously, it is necessary first of all to reach a conclusion as to the appropriate principle of interpretation to be applied to the statute before seeking to reach any conclusion as to whether the statute does or does not apply to the work being carried out by the commissioners in these two cases.
Having carefully considered the submissions which were made to the court, *675 I have come to the conclusion that there is not any principle deriving from the provisions of the Constitution or from the common law applicable in Ireland which presumes that a general statute does not apply to the State or state agencies unless it is either expressly so applied or must so apply by necessary implication. I am also satisfied that there is no such principle which presumes that a general statute applies to the State and to state authorities unless they are expressly exempted from its application or an exemption of them from its application must necessarily be implied from the statute.
The principle which in my view is applicable to the question of the interpretation of the Act of 1963 in this case, so as to ascertain whether it applies to the work carried out by the commissioners in Luggala and Mullaghmore, is that the court should, in accordance with the ordinary rules applicable to the interpretation of statutory provisions and without any presumption in either direction, seek to ascertain whether the legislature intended to apply the necessity to apply for planning permission under s. 24 to the commissioners in carrying out these works.
I have come to this conclusion for the following reasons. In the course of his judgment in the former Supreme Court in Cork County Council v Commissioners of Public Works [1945] IR 561, O’Byrne J at p. 577 quoted with approval a judgment of Story J in the United States of America, in the case of United States v Hoar (1821) Mason 311, where he stated:
Where the government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed or the language used that the government itself was in contemplation of the legislature before a court of law would be authorised to put such an interpretation upon any statute.
And further, where he stated:
It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government or affect its rights unless that construction be clear and indisputable upon the text of the Act.
Referring to the judgment from which these are two quotations, O’Byrne J in his judgment stated as follows:
That case has since been recognised as an authoritative statement of the law of the United States of America, and I would be prepared, apart from any special reason arising from our own Constitution, to follow the reasoning of Story J and hold that the same rule is applicable in this State. The matter, however, does not rest there.
*676
O’Byrne J then continued to consider the history of the Constitution of the Irish Free State and of the Constitution of Ireland 1937 and reached the following conclusion at p. 578:
In view of these constitutional provisions, it seems to me clear that the State is now entitled to the benefit of the prerogative in question and that accordingly the State is not bound by statutes passed by its parliament unless
(1) such statutes are expressly applied to it, or
(2) it is necessarily implied in the terms of the statute that they were intended to apply to and bind the State.
Two other judgments were delivered in the Cork County Council case, one being by Murnaghan J dissenting on some of the issues raised and the other by Black J which agreed with the conclusions reached by O’Byrne J. In the course of his judgment, Murnaghan J stated as follows, at p. 571:
We have had the advantage of a very minute examination of the authorities dealing with the immunity of the Crown in English law, and reference has also been made to certain American authorities, beginning with United States v Hoar. It has, however, become unnecessary to give any answer to the general question as propounded because the plaintiffs have admitted that having regard to the history of the lands with which the case is concerned the Minister for Finance is entitled to the same prerogative as was prior to 1921 enjoyed by the Crown.
Black J in the course of his judgment, having dealt to some extent with the question of the Crown prerogative and having referred to the decision of Story J in United States v Hoar, at p. 588 stated as follows:
However, all this is academic in view of the very proper, because I think inevitable admission of Mr Fitzgerald, by which we have been enabled to approach the problem upon the common ground that having regard to our Constitution, whatever immunity from being bound by statutes was enjoyed by the Crown before 1922, in respect of crown property, is now possessed by this State and its government in respect of state property.
It is, therefore, clear that the expression of opinion by O’Byrne J that the principle which he quotes with approval from the decision in United States v Hoar would be an acceptable principle of statutory interpretation, even apart from any succession to the crown prerogative, must be considered as obiter, even to the core of his decision and certainly does not form part of the other decisions reached on that issue in the court, both of which proceeded upon an acceptance of the succession under the Constitution of the State to the crown prerogative. The decision in that case was dealt with to some extent in the *677 judgment of Walsh J in Byrne v Ireland, a decision of this Court which unequivocally concluded that the State had not succeeded to any of the crown prerogatives applicable to the issues arising in this case. In the course of his judgment, at p. 278, he stated as follows:
In so far as the State may be exempted from the provisions of a statute, it may possibly be capable of being rationalised on the basis on which it was done in United States v Hoar and which was adopted by O’Byrne J as one of his reasons; but it is not necessary to decide that matter in this case as we are not concerned with the construction of a statute or with the question of whether or not the State is bound by the restrictive provisions of some statute.
Oó Dálaigh CJ in Byrne v Ireland agreed with the judgment of Walsh J and also with the judgment of Budd J; O’Keeffe P agreed with the judgment of Budd J; and Fitzgerald J dissented from both the judgments of Walsh J and of Budd J, which reached the same conclusion. In the course of his judgment in that case, Budd J did not express any views on what has been described as the possible rationalisation of a presumption of immunity from general statutory provisions in the State, arising otherwise than under a crown prerogative.
I am, therefore, satisfied that the presumption of exemption in the absence of express inclusion, or inclusion by necessary implication, is not part of a judicial precedent binding upon this Court, nor does it, in my view, having regard to consideration of the cases to which I have referred, form part, even, of a persuasive and clearcut expression of opinion by either this Court or by the former Supreme Court. At best, it must, in my view, be considered as an expression of possible application in the case of Cork County Council where each of the judges unequivocally accepted the then accepted succession of the State to the former English crown prerogative and as being mentioned only in one of the judgments in Byrne v Ireland, namely, by Walsh J and there with an express disavowal of the necessity to consider its application.
It follows that if there were to be a special presumption in regard to the interpretation of statutes where the issue which arises as to their meaning and effect is the question of their application or non-application to the State or state agencies, it would, it seems to me, have to be supported either by a constitutional necessity or by an interpretation and adaptation of the common law which was constitutionally necessary.
The concept of the crown prerogative which, of course, was essentially an English law concept, has found its most recent expression in the decision of the House of Lords in Lord Advocate v Dumbarton DC [1990] 2 AC 580. That decision was expressed by the speech of Lord Keith of Kinkel. He in turn, though reviewing in a comprehensive manner the authorities and the devolution of crown prerogative, would appear essentially to support the conclusion of Diplock CJ in the British Broadcasting Corporation v Johns [1965] Ch 32, *678 where at pp. 78–79 of the report he stated as follows:
Since laws are made by rulers for subjects a general expression in a statute such as any person descriptive of those upon whom the statute imposes obligations or restraints is not to be read as including the ruler himself. Under our more sophisticated Constitution the concept of sovereignty has in the course of history come to be treated as comprising three distinct functions of a ruler: executive, legislative and judicial, though the distinction between these functions in the case, for instance, of prerogative powers and administrative tribunals is sometimes blurred. The modern rule of construction of statutes is that the Crown which to-day personifies the executive government of the country and is also a party to all legislation is not bound by a statute which imposes obligations or restraints on persons, or in respect of property, unless the statute says so expressly or by necessary implication.
This statement of the modern development of the doctrine represents a somewhat less dogmatic and absolute declaration than is to be found in the decision of the Privy Council in Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58.
It seems to me that neither of these two decisions can be viewed as in any way declaring a principle of common law which is freed from the particular position of the Crown in English constitutional theory, or which has by any means been divested of its association with the entire doctrine and history of the crown prerogative.
The decision in the case of Province of Bombay v Municipal Corporation of the City of Bombay, to which I have referred, was a decision of the Privy Council reached at a time when ultimate appeal from the courts of India were brought to it.
The same topic, however, came again before the Indian Supreme Court, after the independence of India had been achieved, in the case of State of West Bengal v Corporation of Calcutta [1967] All IR (SC) 997, decided by the Supreme Court of India in 1967. In the course of the judgment of Subba Rao CJ in that case, at p. 1007 of the report, it is stated as follows:
There is therefore no justification for this Court to accept the English canon of construction for it brings about diverse results and conflicting decisions. On the other hand, the normal construction, namely, that the General Act applies to citizens as well as to State, unless it expressly or by necessary implication exempts the State from its operations, steers clear of all the said anomalies. It prima facie applies to all states and subjects alike, a construction consistent with the philosophy of equality enshrined in our Constitution. This natural approach avoids the archaic rule and moves with the modern trends. This will not cause any hardship to the State. The State can make an Act if it chooses, providing for its exemption from its operation, though the State is not expressly *679 exempted from the operation of an Act under certain circumstances, such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the State.
It seems to me that the reasons for departing from what might be described as the presumption of non-application of general statutes to the State, contained in English law, set out in this portion of the judgment, are reasons which are consistent with the Constitution of Ireland and that certainly there does not appear to be any constitutional principle which would make the more even construction which I have set out in this judgment, of statutes on this issue in any way inconsistent with the principles of the Constitution. I appreciate that it can be urged that an element of certainty arises from a presumption of non-application, unless expressly made, or by necessary implication arising. It does not seem to me, however, that such a consequence would be a sufficient justification, notwithstanding its practical advantages, in relation to certainty, for the introduction of a presumption which would appear to disturb what might otherwise be considered as a necessary constitutional balance between the rights of the State and the rights of the individual.
Interpretation of the Act of 1963
I have had the opportunity of reading the judgment which is about to be delivered by Blayney J in this case. In that, he deals in some detail with the general rules for the construction of statutes based upon the authority of Craies on Statute Law (5th ed., 1952) and Maxwell on the Interpretation of Statutes (12th ed.) and authorities referred to in both those textbooks.
I agree that these principles are correctly set out and are applicable to the interpretation of statutes in Irish law.
Applying those principles to the Act of 1963, the following relevant considerations emerge.
1. The work being carried out by the commissioners on these two sites is clearly development of land, being neither exempted development nor development commenced before the appointed day of the Act of 1963, and having regard to the provisions of s. 11 of the Interpretation Act 1937, the commissioners are prima facie a person who is prohibited by s. 24(2) from carrying out that development save under and in accordance with the permission granted under the Act.
2. The definition of development contained in s. 3 of the Act is very much wider indeed than the mere concept of construction or extension of a building mentioned in s. 84 of the Act, and in particular, the carrying out of works other than building in or under land, and the making of any material change in the use of any structures or other land, are capable of having, in many instances, much greater effect on the planning and development of an area than would have the *680 construction or extension of a particular building.
3. The case for interpreting the provisions of the Act of 1963 as inapplicable to the work being carried out in these two cases by the commissioners is fundamentally based on the provisions of s. 84, yet that section has no application of any description towards development by the commissioners consisting of the carrying out of works in or under the land other than the construction of a building, which are involved in the works on each site in this case, nor is it in any way applicable to the significant material change in the use of the land involved in each of these two cases which would arise from not only the construction of the buildings but the construction of the car parks and other facilities as well.
5. Whilst, therefore, I would accept the contention made on behalf of the commissioners that in so far as the apparent provisions of the statute would apply to a building being constructed by the commissioners, both the provisions of s. 24 and the provisions of s. 84, that would lead to a somewhat illogical and incongruous result, that could not in my view of the proper application of the principles to which I have referred to the construction of this statute, justify the exclusion of every other form of development undertaken by the commissioners from any application of any part of the Act of 1963.
6. In so far as buildings are concerned, the wide powers vested by the Act of 1963 in the then Minister for Local Government, which I have outlined in this judgment and which at the time of the enactment included a power to determine appeals from planning authorities, undoubtedly, make artificial and somewhat unreal the concept of his adjudicating on a dispute between the commissioners and a planning authority arising from consultation pursuant to s. 84 undertaken prior to an application for planning permission under s. 24.
7. The combination, however, of what appears to be the unambiguous meaning of the words contained in s. 24 in respect of a building constructed by the commissioners and the equally unambiguous terms of the words contained in s. 84 as leading to an incongruous or even an absurd result, cannot in my view, upon the principles applicable, entitle the courts in interpreting this statute to insert, as it were, into s. 24 an implied exemption for development of any description carried out by the Commissioners of Public Works which is nowhere expressed in that section.
8. As I have indicated, Costello J in the course of his judgment in the Mullaghmore case stated as a matter of belief or speculation that the accepted constitutional principle that the State was not bound by statute unless by express terms in the enactment, or by necessary implication, which would appear to have existed in 1963, constituted an explanation as to why s. 84 made the very special and limited provisions with regard to the construction of buildings by state agencies. As I read that judgment, he does not base his decision in the case upon that speculation, but rather, has expressed it as confirming his view of the plain *681 meaning of the rest of the provisions of the Act of 1963, other than s. 84. I am satisfied that it would not be permissible to interpret a statute upon the basis of either speculation, or indeed, even of actual information obtained with regard to the belief of individuals who either drafted the statute or took part as legislators in its enactment with regard to the question of the appropriate legal principles applicable to matters being dealt with in the statute.
If, indeed, a court were satisfied upon the terms of a statute itself, that it was based upon a misapprehension as to legal principles which would be applicable to the subject matter outside of any statutory provision, the error thus arising and the consequence arising from such error could not properly, having regard to the separation of powers, be corrected by a court but could only be corrected if it wished to do so, by the legislature itself.
For all these reasons I have reached the conclusion, after careful consideration, that the provisions of s. 24 of the Act of 1963 are applicable to the works carried out by the commissioners on these two sites and, accordingly, I would allow the appeal of the plaintiffs in the Luggala case in so far as it relates to this issue, and I would disallow the appeal of the commissioners in the Mullaghmore case.
O’FLAHERTY J:
The Chief Justice, in his judgment, has set out the background facts to both actions and the course the two sets of proceedings have taken to date.
State land
The first thing to be noted is that both actions are concerned with state land. S. 2 of the State Property Act 1954 provides that:
‘State land’ means land which belongs to the State, the Nation, the People or a state authority or a gift of which, made to the State, the Nation or the People or in terms indicating that it is for the benefit of the State, the Nation or the People, was, before the operative date, accepted by the government or a state authority, and includes any former crown rent,.. [there follow some exceptions which are not relevant].
‘State authority’, the Act provides, means any authority being:
(a) a Minister of State, or
(b) the commissioners [of Public Works in Ireland].
Whether the commissioners occupy the respective lands as principals or agents is of no moment: the commissioners for the resolution of the matter in debate are to be regarded as co-equal with the State.
I would, therefore, reject the preliminary submission made by counsel on *682 behalf of the plaintiffs that because the commissioners have been held by the learned High Court judge in the Mullaghmore case, at least, to be acting as principals in their own right, as opposed to acting as agents for another state authority, they are not to be equated with the State.
Question for resolution
It is my belief that the question for resolution can then be stated quite starkly: do the Planning Acts apply to the State?
Intention of legislature
I have no doubt that the intention of the legislature on the enactment of the 1963 Act was that the State could not be bound. The legislators would have had to do no more than to act on the accepted wisdom of the time which was that the State had inherited the royal prerogative. Byrne v Ireland [1972] IR 241 decided that was not so. However, since I reach a conclusion by other routes I am prepared to agree—for the present cases at least—that a mistaken view of the law cannot be invoked as a key to unlock a statutory provision. Other means are to be employed more appropriately. In my judgment, in the absence of guidance by an Interpretation Act, the courts — in the instant cases this Court — should establish what best accords with the requirements of the Constitution. That is so that we, as judges, can discharge our responsibilities under the separation of powers aspect of the Constitution.
Presumption that State not bound
It is the Oireachtas (President, Dáil and Seanad) that enacts legislation. Most, though not necessarily all, legislation will be brought forward by the government. When enacted it will be for the government as a body or by reference to an individual minister or ministers to see to its implementation. It seems to me that the machinery of government meaning thereby the interaction between the legislature and the executive, is best promoted by declaring that the State should not be bound by any enactment unless it is expressly stated therein that it is to be bound or unless a contrary intention that it is to be bound can be gathered from all the surrounding circumstances, including the purposes and objects of the legislation, the grievances that it seeks to redress and the role of the State, in any of its branches, in the legislation.
The submission made against the acceptance of such a rule is to say that it is not the State that is sovereign: it is the people, and that, therefore, the State should not be in any special position. I would reject this submission. True, it is the people who are sovereign in a way that was not so in the British idiom where the Crown was sovereign and the people were subjects. The people have the ultimate power in that they possess the entitlement through the ballot box to change the rulers in the State from time to time. But it is only through the rulers, *683 thus constituted, that legislation can be enacted or changed. Subject to that entitlement of the electorate, any particular piece of legislation must be taken as it is.
The adoption of the presumption that I suggest does not depend, it will be clear, on any reliance on the historical role of the royal prerogative.
Position in other jurisdictions
The judgment of Story J in United States v Hoar (1821) Mason 311 has been dealt with fully in the Chief Justice’s judgment and I do not propose to add anything further except to observe that the powers delegated to administrative agencies in the United States are often very extensive and to which agencies both citizen and government are often amenable. That may account for the fact that the judgment does not appear to be cited often in modern times.
A somewhat similar position to what I advocate should be the rule has been reached both in Britain and Australia. I leave to one side the operation of Interpretation Acts in various jurisdictions, in respect of which see Hogg, Liability of the Crown , 2nd ed. (1989) p. 205 et seq.
I turn, therefore, first to the House of Lords case, Lord Advocate v Dumbarton DC [1990] 2 AC 580, where Lord Keith of Kinkel, delivering the opinion of the House, approved a passage in the judgment of Diplock LJ in British Broadcasting Corporation v Johns [1965] Ch 32 at p. 78 as follows:
Since laws are made by rulers for subjects, a general expression in a statute such as ‘any person’, descriptive of those upon whom the statute imposes obligations or restraints is not to be read as including the ruler himself. Under our more sophisticated Constitution the concept of sovereignty has in the course of history come to be treated as comprising three distinct functions of a ruler: executive, legislative and judicial, though the distinction between these functions in the case, for instance, of prerogative powers and administrative tribunals is sometimes blurred. The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication.
Lord Keith, in the course of his speech, went on to say at p. 598:
I consider it to be no longer a tenable view that the Crown is in terms bound by general words in a statute but that the prerogative enables it to override the statute. As to the considerations which may be applicable for the purpose of finding a necessary implication that the Crown is bound, it is clear that the mere fact that the statute in question has been passed for the public benefit is not in itself sufficient for that purpose.
*684
In a decision of the High Court of Australia, Bropho v State of Western Australia (1990) 171 CLR 1, Brennan J said at p. 28:
… the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the executive government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the executive government which would be affected if the crown is bound.
A good rule
In sum, I believe that the workings of a parliamentary democracy such as ours would be well served by such a rule as this — it provides a rudder for a craft of the State — though I reiterate that it would be open to the legislature to provide by a general provision in an Interpretation Act or in any individual Act that the State should be bound. I justify this belief because these present cases, important though they may be to the immediate litigants, have unveiled a problem of the most fundamental importance in the matter of statutory interpretation. It is a problem that very likely will continue to surface. Having had such extensive submissions, I believe there will not be a better time to afford a definitive answer. The answer I would provide in the instant cases is that the State has not been expressly or by implication bound by the particular legislation in question. I have already suggested what the general rule should be in regard to the State.
That should be sufficient to resolve the matters in dispute. However, in deference to the conflicting opinions on the correct approach that exist both in the High Court and here, I go further.
Consideration of the 1963 Act
The 1963 Act in its long title provides that it is:
An Act to make provision, in the interests of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural (including the preservation and improvement of the amenities thereof), to make certain provisions with respect to acquisition of land, to repeal the Town and Regional Planning Acts, 1934 and 1939, and certain other enactments and to make provision for other matters connected with the matters aforesaid.
It was passed on 7 August 1963 and came into operation on 1 October 1964. It provided that development plans should be prepared by planning authorities setting out objectives in relation to the development of particular areas. It was *685 in contrast to the rather rigid zoning provisions of the Town and Regional Planning Acts 1934 and 1939. Kenny J said of it in the Central Dublin Development Association v Attorney General (1975) 109 ILTR 69 at p. 81:
One of its main objects was to impose on planning authorities an obligation to make plans for their areas and their permission was made necessary for any development so that they could ensure that the objectives of the plan would be carried out. Other objects were to secure the renewal of obsolete areas in cities and towns, to give planning authorities control over the use of buildings and land and to create powers to enforce the development plans and to give compensation to the owners of property who had suffered loss because they had not been granted planning permission.
The Act represented, on the one hand, a curtailment on how an individual could use his property and, on the other hand, gave persons valuable rights to be heard and to influence how property might or might not be developed.
The late Mr E.M. Walsh SC (afterwards Walsh J) in his book Planning and Development Law , applied the description ‘supreme overlord’ of planning and development to the Minister for Local Government, now the Minister for the Environment. I adopt that description as apt to describe what was the minister’s role. He went on to state:
[The minister] had the power to make regulations under the Planning Act; to dictate to local planning authorities what might or might not be included in development plans; to dissolve a planning authority and substitute a commissioner in its place; to determine whether a proposed development was or was not exempted development; to decide planning appeals; and to determine whether or not a planning authority was entitled to resist a purchase notice.
While some of his functions might be that of a persona designata (cf. Murphy v Dublin Corporation [1972] IR 215), and he had many functions of a quasi-judicial nature (cf. Central Dublin Development Association case), his overlordship of the legislation cannot be doubted.
It is clear that the minister was not bound by the legislation. He could not, for example, have done anything as absurd as appeal to himself. In my judgment, the central matter about the legislation is that the minister concerned with the implementation of the legislation — the powers, duties and functions of his department are described in the Ministers and Secretaries Act 1924 — was, of course, a member of the government and as such he would necessarily be involved in consultations with his colleagues on the implementation of the legislation. It is relevant to note, too, that the Commissioners of Public Works were a branch of the administration assigned to the Minister for Finance (first part of the Schedule to the 1924 Act). The Minister for Local Government (now *686 Environment) could hardly have been intended to hear appeals from his fellow ministers. That fits ill with the idea of collective cabinet responsibility that is enshrined in the Constitution.
It was the decision of the legislature at the time of the enactment of the 1963 Act to give the minister the wide powers that he was given. In due course, it came to pass that An Bord Plenála was set up by the 1976 Act and, therefore, the minister was divested of many of his powers. That, once again, was fairly and squarely a policy decision taken by the legislature.
Even without the rule of construction which I suggest should apply in the interpretation of statutes, it is my belief that the State could not possibly be held to be bound by this legislation with the minister occupying the central position that he did.
Further, could it possibly be right that if the State was intended to be bound that there would not be certain, essential, exemptions provided for — certainly in regard to buildings and installations that would involve the security of the State, to take one critical example.
S. 84
Lynch J has approached the problem for resolution from a neutral stance: without invoking the use of any rule giving a presumption one way or the other as to whether the State should be bound by legislation. I am prepared to do the same but without resiling from the stance that I have taken as regards the necessity for the rule.
In this regard I can state my conclusions shortly. It seems to me to be inconceivable that s. 84 would have been inserted in the 1963 Act if it was intended that the commissioners were required to apply for a planning permission. It follows that I am in complete agreement with the conclusions reached by Lynch J and must, therefore, reject the approach of Costello J.
Subsidiary points
I now turn to two subsidiary submissions of Mr Rogers SC which he says point to an intention on the part of the legislature that the State is not exempt from the planning code. S. 4(1)(i) of the 1963 Act exempts from the requirement of obtaining planning permission ‘development consisting of the carrying out of any of the works referred to in the Land Reclamation Act 1949’. As Barrington J observed in the case of Tralee UDC v Stack (High Court 1983 No. 48 MCA, 13 January 1984), it is clear from the body of the Act that the land reclamation contemplated by the Act is land reclamation carried out by the Minister for Agriculture either at the request of the occupier of land or on the minister’s own initiative. He reached the conclusion that a landowner carrying out work on his own initiative did not come within the exemption. The question posed, therefore, is: why exempt such work by or on behalf of the Minister for Agriculture if the *687 State is not bound in any event? I think the answer is the one that found favour with the Privy Council in Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 and in the House of Lords in the Dumbarton case that it was inserted ex abundante cautela or else, more likely, that it was inserted through a misapprehension that the Act related not solely to the minister but to other individuals as well.
Secondly, reference was made to s. 90 of the 1963 act which provides:
Nothing in this Act shall restrict, prejudice, or affect the functions of the Minister for Finance or the Commissioners of Public Works in Ireland under the National Monuments Acts 1930 and 1954 [collective citation is now the National Monuments Acts 1930 to 1987: s. 27 National Monuments (Amendment) Act 1987], in relation to national monuments as defined by those acts or any particular such monuments.
Again, the question is posed: why have this provision if the State, either minister or commissioners, are not bound by the planning code? The reason I believe that this provision was inserted is to make clear that national monuments were and were to continue to remain separate from the planning code. An idea of the extent of what is embraced by the definition ‘national monument’ as well as ‘monument’ can be gathered from a consideration of the judgment delivered by Ó Dálaigh CJ (speaking for the court) in Tormey v Commissioners for Public Works (Supreme Court 1969 No. 5, 21 December 1972; see infra appendix). A perusal of that judgment makes clear how necessary it is to keep national monuments in a separate sphere.
Conclusion
For these reasons, I would allow the appeal in the Mullaghmore case and dismiss it in the Luggala case.
EGAN J:
The facts of both these cases are fully set out in the judgment of the Chief Justice.
The issue which arises for determination in the two cases is whether or not s. 24(1)(a) of the 1963 Act applies to the building work carried out by the commissioners in Luggala and Mullaghmore. There is nothing of any assistance in the section itself, the relevant provisions of which read as follows:
24
(1) Subject to the provisions of this Act, permission shall be required under this Part of this Act—
(a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day.
Does this apply to the commissioners who are a ‘state authority’ within the *688 meaning of s. 84 of the 1963 Act? There is no specific provision in relation to its applicability or non-applicability. We must consider, therefore, whether there is any presumption or special rule of interpretation in relation to the applicability of general words of a statute to the State or to a state authority. The question was certainly considered by the former Supreme Court in Cork County Council v Commissioners of Public Works [1945] IR 561 but the judges based their decision on the assumption that the State by virtue of the 1922 Constitution had become entitled to the former prerogative of the Crown in regard to being bound by statutes. In view of this assumption (which was, in fact, conceded) Black J considered the general problem to be ‘academic’, Murnaghan J said it was unnecessary to give any answer to the general question and O’Byrne J even though he stated that he would be prepared to follow the reasoning of Story J in United States v Hoar (1821) Mason 311, nevertheless based his decision on constitutional provisions which satisfied him that the State was entitled to the benefit of the prerogative referred to.
The reasoning approved of by O’Byrne J resulted from a finding by Story J to the effect that there was a rule, founded in the principle of the common law, that the general words of a statute ought not to include the government or affect its rights unless that construction was clear and beyond dispute from the text. I am satisfied, however, that O’Byrne J although he expressed a strong opinion in the matter, based his judgment on other grounds and the expression of opinion given by him in the matter was strictly obiter.
The Cork County Council case, therefore, cannot be regarded as an authority on the matter.
The same can be said of Byrne v Ireland [1972] IR 241 where the Supreme Court decided that the State had not succeeded to the crown prerogative but the court did not deal directly with the problem now being discussed but decided that the State, in so far as immunity from suit was concerned, was not imbued by the Constitution with privileges and immunities.
In so far as Irish case law is concerned I cannot find any other authority which would be helpful in the matter and I am also satisfied that the Constitution itself does not provide a clear answer, either directly or by inference.
The Chief Justice has dealt with authorities in other jurisdictions and I agree with his comments in relation to them and with his conclusion that there is no presumption in favour of the exemption of the State or of a state authority from the provisions of a general statute unless it is either expressly so applied or must be so applied by necessary implication. I am also satisfied that there is no contrary principle of applicability where there is no express exemption or exemption which must necessarily be implied.
I regret having reached this conclusion because a presumption one way or the other would usually render the task of interpretation much easier. There are many statutes from which an intention of applicability can readily be inferred *689 but there are others where the intent is difficult to find or recognise. The object of all interpretation of a written instrument is to discover the intention as expressed in the instrument. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself — Salomon v Salomon & Co. Ltd [1897] AC 22.
Applying ordinary rules of interpretation, therefore, we must decide whether or not s. 24 of the 1963 Act applies to the commissioners. I am of opinion that s. 84 of the Act is highly relevant. It provides:
84
(1) Before undertaking the construction or extension of any building (not being a building which is to be constructed or extended in connection with afforestation by the State), a state authority—
(a) shall consult with the planning authority to such extent as may be determined by the minister, and
(b) if any objections that may be raised by the planning authority are not resolved, shall (save where the construction or extension is being undertaken by the minister) consult on the objections with the minister.
If s. 24 which, subject to its own exceptions, requires planning permission, could be said to apply to the commissioners in the two cases we are dealing with, why was s. 84 enacted? It makes little sense to me that mandatory provisions should be made for undefined consultation with the planning authority or the Minister for Local Government if, at the end of such consultation, application for permission had still to be made to the planning authority. I am satisfied that there must be another explanation for the insertion of s. 84 and that the reason is to define the obligations of a state authority before undertaking the construction or extension work referred to in the section. This explanation would mean exemption from the requirements of s. 24.
I am fortified in this view by another factor. If the commissioners, having consulted with the planning authority in compliance with s. 84 and not having resolved any objections that might have been raised, were they to consult with the Minister for Local Government, it would surely be wrong that the minister himself (as would have been the position under the Act) would have been the person to determine any appeal resulting from the granting or refusal of planning permission. The same position would have existed if the minister himself had been the person applying to construct or extend the building. It would be strange indeed if these conclusions were intended by the legislature and I am satisfied that they were not.
I hold, therefore, that the appeal of the commissioners in the Mullaghmore case should be allowed and that the appeal of the applicants in the Luggala case should be dismissed.
*690
BLAYNEY J:
Two main questions arise for determination in these cases. The first is whether, in interpreting a statute where the issue to be determined is whether the State is bound by it, any presumption or special rule of construction is to be applied and the second is whether, in the light of and applying the answer to the first question, the Local Governmnent (Planning and Development) Act 1963 (to which I shall refer as the 1963 Act) is to be construed as obliging the Commissioners of Public Works to obtain planning permission for the interpretative centres at Mullaghmore and Luggala.
It is not necessary for me to deal with the first question. It has been considered in great depth in the judgment of the Chief Justice and I am in complete agreement with the conclusion at which he has arrived and his reasons for reaching it. I am satisfied that in our law there is not in the interpretation of statutes any presumption as to whether the State is or is not bound. In the circumstances I propose in this judgment to confine myself to dealing with the second question.
As there is no presumption either way in regard to whether the State is or is not bound by the 1963 Act, the interpretation of the Act has to be approached in the light of the general principles to be applied in the interpretation of statutes.
The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.’ Craies on Statute Law (7th ed., 1971) at p. 65).
The rule is expressed in very similar terms in Maxwell on the Interpretation of Statutes (12th ed., 1976) at p. 28:
The rule of construction is ‘to intend the legislature to have meant what they have actually expressed’ (perParke J in R. v Banbury (Inhabitants) (1834) 1 A & E 136 at p. 142). The object of all interpretation is to discover the intention of parliament, ‘but the intention of Parliament must be deduced from the language used’ (perLord Parker CJ in Capper v Baldwin [1965] 2 QB 53, at p. 61) for ‘it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law’ (perLord Morris in Davies Jenkins & Co. Ltd v Davies [1967] 2 WLR 1139, at p. 1156).
If the construction of s. 24 of the 1963 Act is approached in the light of these principles, in my opinion the only reasonable conclusion that can be reached is *691 that the section applies to development by the Commissioners of Public Works.
S. 24 provides as follows:
24
(1) Subject to the provisions of this Act, permission shall be required under this Part of this Act—
(a) In respect of any development of land, being neither exempted development nor development commenced before the appointed day….
(2) A person shall not carry out any development in respect of which permission is required by subs. (1) of this section save under and in accordance with a permission granted under this part of this Act.
The section is so worded that it clearly applies to all development other than development coming within either of the two exceptions in subs. (1). So it applies to development by the Commissioners of Public Works. This could have been avoided if the Act had provided in s. 4 that development by the commissioners should be exempted development. But this was not done. The result is that development by the commissioners does not come within either of the exceptions in subs. (1) and so is subject to the general provision that planning permission for it is required. And in so far as the prohibition in subs. (2) is concerned, the commissioners, as a statutory body corporate, are clearly a ‘person’, coming within the definition of that term in s. 11 of the Interpretation Act 1937.
It was submitted on behalf of the commissioners, however, that s. 24 does not apply to them because of the provisions of s. 84. It was argued that it is a necessary implication from the provisions of that section that the commissioners could not be required to seek planning permission as well as to comply with the provisions of s. 84.
S. 84 provides as follows:
84
(1) Before undertaking the construction or extension of any building (not being a building which is to be constructed or extended in connection with afforestation by the State), a state authority—
(a) shall consult with the planning authority to such extent as may be determined by the minister, and
(b) if any objections that may be raised by the planning authority are not resolved, shall (save where the construction or extension is being undertaken by the minister) consult on the objections with the minister.
(2) In this section ‘state authority’ means any authority being—
(a) a member of the government,
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission.
It was submitted that the legislature could not have intended that the *692 commissioners should have to comply with both s. 84 and s. 24; that it would be pointless for the commissioners to have to consult with the planning authority, as required by s. 84, and possibly also, as a result of objections raised, to have to consult with the minister, if subsequently they had to apply for planning permission in the normal way. It was argued that compliance with s. 84 relieved them from having to comply with s. 24.
In my opinion there is no principle in the interpretation of statutes which would permit the court to construe s. 84 in this way. What the court is being asked to do is to construe s. 84 as having by implication the effect of excluding the application of s. 24 to the commissioners. The rule in regard to construction by implication is stated as follows in Craies at p. 109:
If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication, and to draw inferences or supply obvious omissions. But the general rule is ‘not to import into statutes words which are not to be found there’perPatteson J in King v Burrell (1840) 12 A & E 460 at 468 and there are particular purposes for which express language is absolutely indispensable….‘Words plainly should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context’. PerEvershed MR in Tinkham v Perry [1951] 1 TLR 91 at p. 92.
It is clear from this that the first condition that has to be satisfied before recourse can be had to construction by implication is that the meaning of the statute should not be plain. It seems to me that that condition is not satisfied here. The meaning is perfectly plain. In the first place, it is provided that permission is required for any development which is not exempted development; and secondly, it is provided in s. 84 that where a statutory authority wishes to undertake the construction or extension of any building it must comply with the terms of that section. What is being suggested is that it is a necessary implication from the terms of s. 84 that the commissioners should be relieved from complying with s. 24. But this conclusion does not result from any difficulty in interpreting s. 84. It results from forming a conclusion as to why s. 84 was included in the Act. In other words, it results from coming to a conclusion as to the intention of the legislature without that intention being expressed in the section itself. It seems to me that this amounts to speculation, particularly as, if it had been intended to exempt statutory authorities from having to apply for planning permission for the construction or extension of any building, it would have been a simple matter to provide that development by them should be exempted development.
In asking the court to construe s. 84 as relieving them from having to apply for planning permission, the commissioners are asking the court to speculate as *693 to the intention of the legislature in enacting s. 84, something which no court may do. To cite again Craies on Statute Law at p. 66:
‘A general proposition that it is the duty of the court to find out the intention of parliament … cannot by any means be supported’ said Lord Simonds in 1957. Some fifty years before in Salomon v Salomon and Co. Ltd [1897] AC 22 at p. 38, Lord Watson had said:
‘Intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.
After expounding the enactment, it only remains to enforce it, notwithstanding that it may be a very generally received opinion that it ‘does not produce the effect which the legislature intended’ or ‘might with advantage be modified’. The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.
It was also submitted that it would be an absurd situation if the commissioners had to comply with s. 84 and also obtain planning permission, but where, as here, the provisions of the sections are quite clear the court is obliged to give effect to them even if the effect of doing so may not appear to be entirely reasonable.
Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’. Maxwell on the Interpretation of Statutes at p. 29.
It is questionable in any event whether the enforcement of both sections creates an absurd situation. As a result of consulting with the local authority in regard to a particular development, the commissioners would obtain information *694 as to whether their application for planning permission would or would not be likely to be successful, and if it looked as if it would not be successful, they could also ascertain, when consulting with the minister, his attitude to any objections raised by the local authority and so be able to form a view as to whether, in the event of a refusal by the local authority, an appeal to the minister would have a chance of success, so compliance with s. 84 might in fact have been of benefit to the commissioners enabling them to assess in advance whether it would be worthwhile seeking planning permission for a particular development.
For these reasons I am satisfied that s. 84 cannot be construed as relieving the commissioners from the requirement of obtaining planning permission contained in s. 24. There is a further reason also why I consider that it does not have this effect. S. 84 is very limited in its scope. It applies only to the construction or extension of a building. So, if it were to have the effect of relieving the commissioners from applying for planning permission, it could only do so in respect of the construction or extension of a building. But the two interpretative centres they are constructing involve much more than just buildings. The Mullaghmore Centre includes a waste treatment plant, storage tanks, and a car park covering an area of 6,500 square metres, and the Luggala Centre includes forecourts and parking facilities for 180 to 200 cars and five or six coaches. No possible interpretation of s. 84 could relieve the commissioners from applying for planning permission for these additional entities which are not buildings but which clearly are development. So the commissioners would in any event need to obtain planning permission for them.
I would accordingly allow the appeal of the plaintiffs in the Luggala case in so far as it relates to the issue of planning permission and I would disallow the appeal of the commissioners in the Mullaghmore case.
DENHAM J:
The facts and submissions have been fully set out by Finlay CJ.
The issue is on the interpretation of statutes. In general terms the question is whether there is a special rule of construction, a presumption, regarding legislation and the executive. In specific terms the question is whether the Commissioners of Public Works are required to seek planning permission for a development under s. 24 of the Local Government (Planning and Development) Act 1963.
The first issue then is the principle by which the executive is bound by statutes of the Oireachtas. Historically the Crown had a special position in relation to legislation. The concept of a special position for the executive vis-á-vis the legislature was rooted in medieval England.
The matter was reviewed by the Supreme Court in Cork County Council v Commissioners of Public Works [1945] IR 561. O’Byrne J referred to the origins of the rule in common law in England and the theory on which it was based being *695 that laws made by the Crown, with the assent of the Lords and Commons, were intended to bind subjects but not the Crown itself. He pointed to a similar rule in the United States of America quoting US v Hoar (1821) Mason 311 wherein Story J said:
Where the government is not expressly, or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed or the language used that the government itself was in contemplation of the legislature before a court of law would be authorised to put such an interpretation upon any statute. In general, Acts of the legislature are meant to regulate and direct the acts and rights of citizens and in most cases the reasoning applicable to them applied with very different and often contrary force to the government itself. It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the Act.
O’Byrne J said that, apart from any special reasoning arising from our Constitution, he would be prepared to follow Story J and hold the same rule applicable here. Black J viewed the problem as ‘academic’.
I am satisfied that this Court is not bound by O’Byrne J, as:
(i) The conclusion by O’Byrne J was obiter dicta; it was conceded by counsel that the general question was propounded in terms too wide to admit a categorical answer and that it was unnecessary to answer it in view of the two special questions submitted to the court.
(ii) The decision was grounded on the belief that the prerogative of the Crown survived into the new State.
(iii) The Supreme Court in Byrne v Ireland [1972] IR 241 held that the former prerogative of immunity from suit did not exist in Ireland after the enactment of the Constitution of the Irish Free State 1922 and therefore was not vested or continued by Articles 49 and 50 of the Constitution of Ireland 1937.
For the reasons set out herein I am satisfied that no rule exists whereby the executive enjoys a special position in regard to legislation.
The presumption in favour of the Crown was founded on the concept of the King in a feudal society. The prerogative of the Crown is not a concept which in this context was carried over and vested in the State.
In the Byrne case at p. 274 Walsh J stated:
All royal prerogatives to be found in the common law of England and in the common law of Ireland prior to the enactment of the Constitution of Saorstát Éireann 1922, ceased to be part of the law of Saorstát Éireann because they were based on concepts expressly repudiated by Article 2 of the Constitution, and, therefore, were inconsistent with the provisions of that Constitution and were not carried over by Article 73 thereof.
*696
Whereas I am satisfied that the special position of the executive in relation to legislation had its roots in feudalism it has evolved in other countries where the common law had ventured. Thus it is necessary to consider if any such rule exists in this jurisdiction under a rule of construction of statutes other than the prerogative.
The recent House of Lords decision in Lord Advocate v Dumbarton DC [1990] 2 AC 580 restated the rule that the Crown was not bound by a statute unless expressly named or by necessary implication, and applied the dicta of Diplock LJ in British Broadcasting Corporation v Johns [1965] Ch 32, 78–79. That dicta stated, inter alia:
The question is thus one of construction of a statute. Since laws are made by rulers for subjects, a general expression in a statute such as ‘any person’, descriptive of those upon whom the statute imposes obligations or restraints is not to be read as including the ruler himself. Under our more sophisticated constitution the concept of sovereignty has in the course of history come to be treated as comprising three distinct functions of a ruler: executive, legislative and judicial, though the distinction between these functions in the case, for instance, of prerogative powers and administrative tribunals is sometimes blurred. The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication.
The enlightening phrase therein is ‘Since laws are made by rulers for subjects….’
I am satisfied that this modern rule is in fact so rooted in the prerogative of the Crown as the personification of the State that it is in fact inseparable from that concept, and thus is not a new rule of construction.
Counsel conducted a very useful tour through the United States and the British Colonies and Dominions to consider the development of this rule.
In Australia a watershed has been reached with Bropho v State of Western Australia (1990) 171 CLR 1 where the rule has been reconsidered. In the judgments of Mason CJ, Deane, Dawson, Toohey, Gandron and McHugh JJ at pp. 21–22 they stated:
Once it is recognised that the rule does not, of itself, provide an impregnable foundation for its own observance, there can remain no basis in principle for unqualified insistence upon the rule as an inflexible one, with the stringent implications which recent cases have accorded it. In other words, once it is accepted that a legislative intention to bind the Crown may be disclosed notwithstanding that it could not be said that that intention was ‘manifest from the very terms’ of the statute or that the purpose of the statute would otherwise *697 be ‘wholly frustrated’, fundamental principle precludes confinement of the general words which the legislature has used in a way which will defeat that intention. Such a legislative intent must, of course, be found in the provisions of the statute, including its subject matter and disclosed purpose and policy — when construed in a context which includes permissible intrinsic aids. If such a legislative intent does appear from the provisions of a statute when so construed, it must necessarily prevail over any judge-made rule of statutory construction including the rule relating to statutes binding the Crown.
In Canada, in R. v Eldorado Nuclear Ltd [1985] LRC (Const) 304 Dickson J at p. 312 in reviewing the common law rule and the subsequent statute stated:
Parliament has followed the lead of the common law, and taken the development one step further. S. 16 of the Interpretation Act removes even the necessary implication exception:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s right or prerogatives in any manner, except only as therein mentioned or referred to.
The conceptual rationale underlying the doctrine of Crown immunity is obscure. In Bonanza Creek Gold Mining Co. Ltd v R. [1916] 1 AC 566 the Privy Council said at p. 586:
… it is the general rule in the construction of statutes that the Crown is not affected unless there be words to that effect, in as much as the law made by the Crown with the assent of the Lords and Commons is enacted prima facie for the subject and not for the Sovereign.
Why that presumption should be made is not clear. It seems to conflict with basic notions of equality before the law. The more active government becomes in activities that had once been considered the preserve of private persons, the less easy it is to understand why the Crown need be, or ought to be, in a position different from the subject. The court is not, however, entitled to question the basic concept of Crown immunity, for parliament has unequivocally adopted the premise that the Crown is prima facie immune. The court must give effect to the statutory direction that the Crown is not bound unless it is ‘mentioned or referred to’ in the enactment.
In State of West Bengal v Corporation of Calcutta [1967] All IR 997 the Indian Supreme Court held that the rule of construction that the King is not bound by statute unless he is expressly named or brought in by necessary implication was inconsistent with their Constitution as they had no Crown, and the archaic rule based on prerogative had no relevance to a democratic republic being inconsistent with the rule of law based on the doctrine of equality.
*698
It is thus clear that as a state moves from the position where the Crown has a unique and special position generally, and as the executive increasingly becomes involved in wider areas of decision making in the community, and as the concept of an egalitarian democracy develops, this rule is reassessed. What these cases stress also is that one must look to the roots — the Constitution of a country — to analyse the position of this rule in the State.
To analyse the position in Ireland the first consideration must be the Constitution. The Constitution does not expressly give to the government a special position in regard to legislation. Thus any conclusion as to a special position of the government must be reached by implication from the Constitution, or by the carrying over of any presumption from common law.
The Constitution is derived from ‘the people’ of Ireland. It is a sovereign, independent, democratic state; Article 5. The State, legislative, executive or judicial, is not above the law. The powers of government are set out in Article 6;
1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.
Under the Constitution the people are sovereign. The very word is of interest as it denotes the supreme ruler. Thus the people are, in the last analysis, the rulers. The executive arm of government exercises its powers, derived from the people, in accordance with the Constitution.
The powers of the State are separated. The sole and exclusive power of making laws for the State is vested in the Oireachtas; no other legislative authority has power to make laws for the State; Article 15.2.1. The executive power of the State is, subject to the Constitution, exercised by or on the authority of the government; Article 28.2. Justice is administered in courts established by law by judges appointed in accordance with the Constitution.
Thus the essence of the Constitution is that there is a government with three independent arms, which each independently carry out their govermental duties. The separation of powers is the kernel of the democratic state set up under the Constitution. While the checks and balances of the separation of powers establish a system wherein one arm of government in general is not favoured over the other, neither in general does one encroach upon the other, although in certain circumstances there are rights of intervention by one upon the boundaries of another, as set out in the Constitution. In general the boundaries of the three organs remain intact. By such a balance is the modern democratic state achieved.
The Constitution does not create expressly or by implication any presumption *699 in favour of the executive in legislation, and the Oireachtas may legislate including or excluding the application of an Act to the executive in accordance with constitutional parameters. The absence of a presumption in favour of the executive is a natural corollary of a democratic state.
In arriving at this conclusion I also have regard to the concept of equality. On one hand this concept means that all citizens as human persons are equal before the law, though the State may, in its enactments, have due regard to the differences of capacity, physical and moral, and of social function. This right to equality is one of the personal rights of citizens.
In addition to recognising the right to equality of citizens the concept of equality includes the concept that, in the execution of their power the organs of government shall act with due regard to the concept of equality. Thus, while accepting that there may be specific exceptions, in general, the position of a citizen, as a person, should not be lesser than a ‘person’ in the form of a corporate body, of whatever status.
This concept of equality, allied to the doctrine of the separation of powers, and to the absence of any specific provision in the Constitution to give to the executive a special position in relation to the legislature, convinces me that the executive has no such special position. Thus in legislating in accordance with the Constitution the Oireachtas legislates for all, and that includes the executive.
There is no presumption or special rule of interpretation which is applicable to the position of the executive in regard to legislation. This means that the Oireachtas may legislate for the executive, in accordance with the Constitution, and may specifically choose to include it or exclude it from obligations and duties.
In arriving at this conclusion I am in agreement with the judgment of Budd J in Byrne v Ireland [1972] IR 241 where, having analysed the nature of the State under the Constitution, he pointed out that the status, power, authority and function of the State is limited by the restrictions, guarantees, duties and obligations imposed by the Constitution, which restrictions, guarantees, duties and obligations show that the State is not above the law or the Constitution but is subject to it. He stated at p. 299:
From what is to be deduced in the main from an analysis of the foregoing provisions of the Constitution, in so far as they affect the immunity of the State from suit, it would seem correct to say that the Constitution is not imbued with feudal conceptions of privilege and exemptions but rather with modern conceptions of the duty of the State and the recognition by it of the human rights and needs of those who are the citizens of the State so that, instead of hedging the State with privileges and immunities, the general trend is to place obligation on the State.
I consider that these deductions apply to the wider field, to the whole concept *700 of prerogative, and since 1972 it has become further apparent that the position of the State in the Constitution is not one of privilege but one where power is to be exercised in accordance with the Constitution and is often a matter of duty and obligation.
In the absence of the prerogative or any other rule or presumption affecting the Oireachtas insofar as its power to legislate for the executive exists I am satisfied that the normal rules on the construction of statutes apply in determining the issue as to whether the State or the executive or the government is bound by a statute.
Applying the rules of construction to the Act
Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction.
Thus in In re MacManaway [1951] AC 161 at p. 169 Lord Radcliffe in dealing with a reference for advice as to a question as to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act 1801 said:
The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.
In Davies Jenkins and Co. Ltd v Davies (Inspector of Taxes) [1968] AC 1097 at p. 1120 Lord Morris of Borth-y-Gest stated:
I understand that it is accepted that when Parliament enacted s. 18 of the Finance Act 1954, it must have proceeded on the basis that it was not necessary for the purposes of s. 20 of the Finance Act 1953 that the recipient company should be trading at the time of the receipt of a subvention payment. This, in my view, neither relieves the courts from giving free and untrammelled consideration to the interpretation of s. 20 nor does it furnish material for their guidance in so giving it. It is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.
In R. v Wimbledon Justices, ex p. Derwent [1953] 1 QB 380 Lord Goddard CJ stated at p. 384:
We are not concerned with that because, although in construing an Act of *701 Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific offence, it is not for this Court to find other offences which do not appear in the statute.
In Cox v Hakes (1890) 15 App Cas 506 Lord Herschell stated at p. 528:
It is not easy to exaggerate the magnitude of this change; nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involves this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.
In Craies on Statute Law (7th ed.) at p. 67 it is stated:
Even though a court is satisfied that the legislature did not contemplate the consequences of an enactment, a court is bound to give effect to its clear language.
Halsbury’s Laws of England , 4th ed. states at vol. 44, paragraphs 863 and 864 respectively:
Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.
Speculation as to parliament’s intention is not permissible. If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the legislature must have intended.
The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted.
Applying the rules of the interpretation of statutes, in accordance with the fundamental concepts of the Constitution, it would be improper to give a strained construction to the 1963 Act. Dealing with the fundamental concepts, the balancing of rights and powers under the Constitution, the primary and literal approach to the construction of the statute is appropriate.
*702
Local Government (Planning and Development) Act 1963
The relevant sections of the Local Government (Planning and Development) Act 1963 have been set out by the Chief Justice.
The above statute is an Act:
To make provision, in the interests of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural (including the preservation and improvement of the amenities thereof)….
In plain language the Act establishes a scheme whereby permission is required for development, other than exempted development. The development in question here is not exempted development. On the face of s. 24 it applies to the development in issue in this case. This explicit situation has to be considered in light of the provision for consultation established under s. 84, and in light of the Act as a whole.
S. 84 requires consultation by certain state authorities before the construction or extension of a building. This section is limited in its application — it neither applies to ‘development’, nor does it refer to the alteration of user. It requires a member of the government, the Commissioners of Public Works in Ireland, or the Irish Land Commission, before undertaking the construction or extension of any building (not being a building which is to be constructed or extended in connection with afforestation by the State), (a) to consult with the planning authority to such extent as may be determined by the minister and (b) if any objections that may be raised by the planning authority are not resolved, shall (save where the construction or extension is being undertaken by the minister) consult on the objections with the minister.
In clear terms this section requires consultation prior to the construction or extension of a building. It is thus a preliminary requirement for a limited number of persons to a restricted type of development. It does not refer to s. 24, it does not refer to an exemption, it does not create an exemption under s. 24.
I consider that it would be wholly wrong to infer into this requirement, to consult prior to undertaking the construction or extension of a building, the rule that s. 24 does not apply to the state authorities named therein.
This section refers only to an early stage of a limited type of development. It does not refer to an alteration of user. It refers to a limited number of state bodies.
The plain language of s. 84 is to require consultation by certain authorities. To read any further meaning into it would be a misconstruction to repair a perceived defect in the Act.
There is no section in the 1963 Act which displaces the State’s obligations under s. 24. Nor can the Act as a whole be construed in accordance with the general principles on the construction of statutes so as to exempt the *703 Commissioners of Public Works in Ireland from the requirements of s. 24; to so construe the Act would in fact be to legislate which is not the function of the courts but rather that of the Oireachtas.
In conclusion, for the reasons set out herein I am satisfied that the Commissioners of Public Works in Ireland are required to obtain planning permission for building interpretative centres. Accordingly I would disallow the appeal of the commissioners in the Mullaghmore case and allow the appeal of the plaintiffs in the Luggala case, on the issues before this Court.
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