1988/306 J.R.
THE HIGH COURT
JUDICIAL REVIEW
BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
APPLICANT
AND
AN BORD PLEANALA
RESPONDENT
AND
BRIDGEFARM COMPANY LIMITED
FIRST NOTICE PARTY
AND
COOLATTIN WOODS ACTION COMMITTEE
SECOND NOTICE PARTY
Judgment of Mr. Justice Barrington-delivered the 22nd day of June 1989.

This application for Judicial Review raises a net point on the interpretation of the Local Government (Planning and Development) Act 1963 and on the Wicklow County Council Coolattin Woodland Tree Preservation Order 1978 made by the Applicant Council under the said section.

The history of the matter is as follows. On or about the 31st day of October 1978 Wicklow County Council in exercise of the powers conferred on it by Section 45 of the Local Government (Planning and Development) Act 1963 made a Tree Preservation Order entitled "Wicklow County Council Coolattin Woodland Tree Preservation Order 1978". The said Order was made in the interest of amenity to make provision for the preservation of the trees, groups of trees and woodlands in the townland of Tomnafinnogue, Ballyraheen, Ballykelly and Coolattin Park in the County of Wicklow. The said Tree Preservation Order was in respect of an area of 164 acres approximately, which lands are now owned by the first named Notice Party, Bridgefarm Company Limited. The trees in question are mainly oak trees which are situate in an area which An Foras Forbartha designated in 1987 an area of scientific interest of national importance because of its "ecological interest". In addition, in the 1986 Wicklow Draft Development Plan, the view to the south and east from the county roads number 243 (R. 749) at Ballyraheen towards the Derry river valley is a view listed for preservation and improvement. This view includes the view of Tomnafinnogue from the regional road joining Tinahely to Shillelagh at Ballyraheen. It is considered by many that the oakwood at Coolattin is one of the finest in the country and this was one of the considerations which led the County Council to make the Tree Preservation Order the subject matter of the present proceedings.

In or about the 26th of March 1987 the said Bridgefarm Company Limited submitted five applications for the selective felling and extraction of trees the subject matter of the said Tree Preservation Order.

The County Council refused four of the said applications and granted the fifth subject to conditions. Bridgefarm Company Limited was dissatisfied with the four refusals and attempted to bring an appeal in each case to An Bord Pleanala. The second named Notice Party - the Coolattin Woods Action Committee - are a group of citizens concerned to protect the Coolattin Woods and they purported to appeal to An Bord Pleanala against the decision of the Council to grant one of the applications subject to conditions.

The net issue in the present case is whether, having regard to the provisions of Section 45 of the Planning Act 1963 and to the terms of the Council's Tree Preservation Order 1978 an appeal lies to An Bord Pleanala from a decision of the County Council to grant or refuse permission to fell trees in Coolattin Woods. An Bord Pleanala argues that such an appeal does lie; the County Council argues that no such appeal lies. Bridgefarm Company Limited does not feel it can take up a position on either side of the question and the Coolattin Woods Action Committee is concerned, not with the procedural point, but with the general question of preserving Coolattin Woods. A member of the Committee appeared before me and explained why, in the opinion of the Committee, the conditions imposed by the County Council in the case in which they granted permission, would not be sufficient to protect Coolattin Woods, but, wisely, declined to get involved in the procedural wrangle between the County Council and An Bord Pleanala.

SUBMISSIONS
The submission put forward by the County Council is comparatively simple. The use of any land for the purposes of forestry is exempted development within the meaning of Section 4. Tree felling is therefore excluded from the provisions of Section 3 of the 1963 Act and consequently from the whole of Part IV of the Act including Section 24 which lays down the general obligation to obtain permission for development and Section 26 which deals with the procedure for applying for planning permission. Both of these sections appear in Part IV.
The question of the preservation and felling of trees is dealt with by Section 45 of the Act which appears in Part V dealing with "amenities".

Section 45 deals with Tree Preservation Orders
and provides that the planning authority may, in certain circumstances, make a Tree Preservation Order and that such an Order may contain a provision prohibiting the cutting down of trees without the consent of the planning authority and may also (Section 45 subsection (1) paragraph (b))contain provision -
"(b) for applying, in relation to any consent under the order, and to applications therefor, any of the provisions of Part IV of this Act relating to permission to develop land, and to applications for such permission, subject to such adaptations and modifications as may be specified in the order"

Subsection (4) provides that when the planning authority make such a Preservation Order they are to notify the owner or occupier of any land affected by the Order and also any other person then known to them to be entitled to fell trees on the land to which the Order relates. Subsection 
(5) provides as follows:
"Any person on whom a notice and a copy of an order is served under this section may, at any time before the day specified in that behalf in the notice (not being earlier than one month after such service), appeal to the Minister against the order."
The planning authority in exercise of the powers
conferred on it by Section 45 of the Planning Act 1963 made the Wicklow County Council Coolattin Woodland Tree Preservation Order 1978 forbidding the felling of trees in Coolattin Woods except with the consent of Wicklow County Council and in accordance with the terms of any such consent. The Order then went on to provide as follows
"And the said Council hereby apply, in relation to any consent under this Order and to any application therefor, the provisions of Part IV of the Local Government (Planning and Development) Act 1963 shown in Part III of the said Schedule subject to the adaptions and modifications specified therein."

Part III of the Schedule provided that certain provisions of Part IV of the 1963 Act, as adapted and modified, were to apply to the Order and the Order refers in particular to subsections (1), (4), (8) and (11) of Section 26.

There is however no reference to subsection (5) of Section 26 which provides for appeals from decisions of the planning authority to the Minister (now to An Bord Pleanala). The clear implication, the Council submits, is that the intention was that there should be no appeal against a decision by the planning authority to grant or refuse a permission to fell trees pursuant to the provisions of the Tree Preservation Order. Persons adversely affected by the Tree Preservation Order, could, they submitted, appeal to An Bord Pleanala against the tree preservation itself (provided they appealed in time) but there was no appeal from a decision of the planning authority to grant or withhold permission to fell trees pursuant to the provisions of the Preservation Order.

An Bord Pleanala is, the Council submits, a statutory body and has only such jurisdiction as has been conferred upon it by statute. In this case, they submit, no jurisdiction has been conferred upon it.

Mr. Brady, on behalf of An Bord Pleanala said that he was not challenging the constitutionality of Section 45 of the 1963 Act. But he submitted that the Court should, in approaching the interpretation of the section, lean against any interpretation which would deprive a citizen of his right to appeal against any decision of the planning authority made in accordance with a Tree Preservation Order made under Section 45. He relied heavily on the decision of Mr. Justice Murphy in the State (Haverty) v. An Bord Pleanala (unreported judgment delivered the 17th day of July 1987). In that case Mr. Justice Murphy appears to have accepted - notwithstanding some ambiguity in the relevant regulations - that an objector to an application for planning permission had a right to make his case not only to the planning authority but also, on appeal, to An Bord Pleanala. At page 9 of his unreported judgment Mr. Justice Murphy says – 

"It seems to me, therefore, that precedent has established the right of an objector, notwithstanding the absence of any property right, to make his case to the planning authority in the first instance and An Bord Pleanala on appeal and the further right of law to have decisions by either of those bodies reviewed by the Courts in the event of their acting without jurisdiction or in a manner contrary to the basic fair procedures required by our Constitution.That there is a lacuna in the rules dealing with appeals is confirmed by reference to Section 18 of the Local Government (Planning and Development) Act 1983 which confers on An Bord Pleanala the right where they are of opinion that any document, particulars or other information is necessary for the purpose of enabling it to determine an appeal to serve notice "on any person who is a party to the appeal or to any other person who has made submissions or observations to the Board as regards the appeal". It is clear that the statutory regulations have not dealt with the category of persons who are not parties to the appeal in the sense in which those words are defined by the regulations, but who have made submissions or observations to the Board as regards the appeal. In my view this additional category of persons do have rights which are entitled to an appropriate degree of protection in accordance with fair procedures guaranteed by the Constitution."

I totally accept this. But it appears to me that present case we are dealing with a much more limited in matter. Section 45 deals with Tree Preservation Orders and contemplates that persons who feel adversely affected by the making of the Order have a right of appeal to An Bord Pleanala against the making of the Order. But the decision of the planning authority to grant or refuse an application for permission to fell trees, initially protected by the the Preservation Order, appears to me to be a much more limited matter and might in certain circumstances refer to one tree only. Under these circumstances one could easily see why an appeal might be open against the making of the Preservation Order but no appeal might lie against a decision to grant or withhold a consent under the Order.

Mr. Brady points out that all five decisions made in the present case were made by Order. But I do not think one could safely conclude from that that the decisions made
by the planning authority in the present case were "Orders" of the kind contemplated by Section 45 subsection (5) of the 1963 Act or that persons served with such Orders would have an automatic right of appeal to An Bord Pleanala. It appears to me that subsection (5) is referring to Tree Preservation Orders. This appears to me to be borne out by subsection (2) which distinguishes between a consent (or refusal of consent) on the one hand and "an Order under this section" on the other hand.
Subsection (2) reads as follows -
"Any person who has suffered damage in consequence of any refusal of consent required under an order under this section, or of any grant of any such consent subject to conditions, shall, if he makes a claim on the planning authority within the time and in the manner specified by the order, be entitled to recover from such authority compensation in respect of the damage ....."
Under these circumstances it appears to me that the County Council's interpretation of Section 45 is the correct one and that they have made out their case for the relief claimed.