THE SUPREME COURT
44, 46 & 47/03
MAUD WHITE and MICHAEL WHITE
DUBLIN CITY COUNCIL
IRELAND and THE ATTORNEY GENERAL
[Judgments delivered by Denham J. & Fennelly J.; Murray J., McGuinness J. & McCracken J. concurring.]
JUDGMENT of the Court delivered on the 10th day of June, 2004 by DENHAM J.
The applicants, who are respondents on the appeal, (hereinafter "the respondents") in the statement grounding their application for Judicial Review, claimed a declaration that section 82(3B) (a)(i) of the Local Government (Planning and Development) Act, 1963 as inserted by section 19(3) of the Local Government (Planning and Development) Act, 1992 is invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution. Their claim for Judicial Review of the decision of the first-named respondent/appellant, formerly the Mayor, Aldermen and Burgesses of Dublin, now Dublin City Council (hereinafter "the planning authority") was commenced outside the two-month time limit allowed by that section.
Section 19(3) of the Act of 1992 inserted the following provision into section 82 of the Act of 1963:
"(3A) A person shall not question the validity of—
(a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act, or
(b) a decision of the Board on any appeal or on any reference, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as 'the Order').
(3B) (a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall—
(i) be made within the period of two months commencing on the date on which the decision is given, and (ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to—
(I) if the application relates to a decision referred to in subsection (3A) (a) of this section, the planning authority concerned and, where the applicant for leave is not the applicant for the permission or approval under Part IV of this Act, the applicant for such permission or approval,
(II) if the application relates to a decision referred to in subsection (3A) (b) of this section, the Board and each party or each other party, as the case may be, to the appeal or reference,
(III) any other person specified for that purpose by order of the High Court,
and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.
In the present case, the Court is concerned with the absolute two-month time limit imposed by the section, especially with the fact that there is no power to extend the time.
The respondents argued that, by enacting this provision, which contains an absolute and unqualified limitation period and without any provision for an extension of time in circumstances where an aggrieved person did not know and could not reasonably have known within the period that a decision had been made affecting his or her interests, the State has failed to respect and vindicate their personal and property rights.
The learned High Court judge identified the constitutional issue for determination as being:
"... whether the decision of the Oireachtas to legislate in the manner in question without the saving clause contended for on the part of the applicants was irrational such as to require this Court to strike down the impugned provision, where the failure of the applicants to bring the proceedings in question was one where the essential blame lies with the planning authority."
Having considered the matter, he reached the following conclusion:
"The applicants' ignorance of their rights during the short limitation period was caused by the first respondent's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it. I am satisfied in these circumstances that there must be very compelling reasons indeed to justify such a rigorous limitation in the exercise of a constitutionally protected right. The constitutionally protected right of the applicants is the right to litigate. Against that must be balanced the constitutional right of the notice party in his property to be protected against unjust or burdensome claims. The interest of the public is twofold, namely that constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims. There is also an interest of the public in proper planning and development. The issue in this case is whether the balance contained in the impugned provision is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. This must be determined from an objective stance.
I am satisfied that the limitation period at issue in this case, in the absence of any saver, is so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it must be considered to be unreasonable and, therefore, unconstitutional. I am satisfied that while the imposition of a limitation period such as that at issue in these proceedings must be such as inevitably to cause some hardship, "the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed."" [This is a citation from the judgment of the court in Tuohy v Courtney, discussed later.]
The learned High Court judge accepted the respondents' contention and declared the provision to be repugnant to the Constitution. The second and third-named respondents/ appellants (hereinafter "the Attorney General") have appealed against that decision.
Mr Brian O'Moore, Senior Counsel for the Attorney General relied, firstly, on the cardinal and oft-repeated principle that an Act of the Oireachtas is presumed to be constitutional. This principle applies with particular force to legislation regulating social and economic matters. He cited especially the judgment of the Court In the matter of Article 26 of the Constitution and in the matter of sections 5 and 10 of the Illegal Immigrants (Trafficking ) Bill, 1999  2 IR 360 (hereinafter "the Illegal Immigrants Bill case").
Counsel considered that the learned High Court judge had propounded for himself the correct test in the passage cited above, but that he had not applied it correctly to the particular legislation. Limitation periods inevitably entail curtailment of the right to litigate. This is justified by the need to protect defendants from stale claims. The history and function of limitation periods had been fully explained in the judgment of the Court, per Finlay C.J., in Tuohy v Courtney  3 I.R. 1. In particular, the recognition, in that case, that the promotion of certainty and finality of claims so as to permit individuals to arrange their affairs, "whether on a domestic, commercial or professional level" as a legitimate purpose of legislation clearly justifies the limitation provided by section 82(3B)(a)(i). The Oireachtas engages in a balancing exercise. It balances the respective constitutional rights to litigate and to be protected from stale claims. That is a legislative function. It can only be overruled in the event of what the learned High Court judge, quoting Finlay C.J. called "… hardship … so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed."
The Attorney General defended the absence of a provision for extension of time, in reliance on Hegarty v O'Loughran  1 I.R. 149. Such legislation may represent a just and reasonable policy decision, which it is for the Oireachtas to take. The decision of the Court in the Illegal Immigrants Bill case showed that an extremely short limitation period --- in that case fourteen days --- could be justified by objective reasons.
Counsel for the Attorney General next outlined the legislative policy considerations. These include the need for certainty about future development, the right of developers to know at an early stage that there is a challenge, to avoid unnecessary costs in planning appeals. These were recognised by Costello J in Cavern Systems Dublin Ltd v Clontarf Residents Association  I.L.R.M. 24. Despite the declaration by Costello J in Brady v Donegal County Council  I.L.R.M. 282 that section 82(3B)(a)(i) was unconstitutional (a decision set aside by this Court for other reasons), the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992. This, in itself, belies the contention that this legislative decision is irrational. The rationale was explained by Finlay C.J. in KSK Enterprises Limited v An Bórd Pleanála  2 I.R. 128 at page 135: a person who has obtained planning permission should "at a very short interval after the date of the decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge and therefore presumably left in a position to act with safety upon the basis of that decision."
The Attorney General acknowledges that section 50 of the Planning and Development Act, 2000 permits an extension of the eight-week time limit there enacted where "there is good and sufficient reason for doing so." This different policy choice does not, however, mean that the enactment of section 82(3B)(a)(i) was irrational. The practice of the High Court has, it is noted, been to be very strict about any such extensions.
Mr John Rogers, Senior Counsel, on behalf of the respondents supports the decision of the High Court. He says that the right of access to the courts is guaranteed by the Constitution. Section 82(3B)(a)(i) has operated to defeat the respondents in the exercise of this right. They were deprived of the opportunity to challenge a planning decision to grant permission for a materially different development from that which had been advertised. The section imposes an unreasonable restriction by not permitting any judicial extension of the time limit. The public policy objectives pursued by the legislation, namely of confining the opportunity of objecting to planning decisions and of protecting the interests of those who have obtained planning permission, could have been attained by a short limitation period combined with a provision for extension. The legislative discretion should not be exercised so as to undermine a right guaranteed by the Constitution.
The respondents relied, in particular, on the reasoning of Costello J in Brady v Donegal County Council, cited above. The decision in Tuohy v Courtney is distinguishable. It was concerned with a limitation period laid down by the Statute of Limitations, 1957 (hereinafter "the Act of 1957") and with the balancing of the rights of plaintiffs and defendants in actions of contract and tort. It did not concern the right of access to the Courts. In private litigation, limitation periods are a matter of defence: they must be pleaded. The present case concerns the lawfulness of a decision of a public authority and, hence, the right to challenge, in the public interest, unlawful executive or administrative action. The planning code is concerned with the common good. The statutory scheme recognises that members of the public should participate.
The effect of the section is to exclude a person who did not know and could not have known that he had a cause of action during the two-month period from challenging a decision which affected him. The common good requires that there should not be an absolute time limit in respect of planning decisions.
Mr Rogers submitted that the test propounded by Costello J in the Brady case, where he had said that he "should approach the issue … … generally, (a) by considering whether the plaintiffs have shown (and the onus is on them) that the two-month limitation period is unreasonable having regard to the competing interest which the Oireachtas was required to reconcile, and in particular (b) whether the absence of a saver clause in the legislation would enable the court to lift the two-month bar in favour of a plaintiff whose ignorance of a cause of action within the two-month period was caused or contributed to by the defendant is unreasonable thus rendering the section constitutionally invalid." Costello J also considered the earlier Supreme Court decision in Cahill v Sutton  I.R. 269 and particularly some remarks of Henchy J regarding section 11(2)(b) of the Act of 1957. Henchy J had observed the absence from the section of a saver for cases where a plaintiff did not know and could not have known of the existence of his cause of action within the three-year period there provided. He remarked, at page 288, in what was clearly an obiter dictum, that "the justice and fairness of attaching…a saver [such as had been enacted in the United Kingdom]…are so obvious that the enactment by our Parliament of a similar provision would merit urgent consideration."
In Brady, Costello J did not consider those remarks as indicating a concluded view that the section of the Act of 1957 was unconstitutional, but he found them "of considerable relevance to this case." He went on the state:
"A fortiori, a limitation period which contains no saver of plaintiffs whose ignorance of their cause of action is attributable to the defendants' wrong-doing would appear to be unjust and, very likely, unconstitutional.
The respondents also relied on the statement in the judgment of the Court in O'Brien v. Manufacturing Engineering Limited  I.R. 334 at 366:
"It is, of course, conceivable that occasions may arise when some particular prospective litigant or injured party may have no knowledge whatever of any statutory period of limitation, whether under this Act or any other Act, and may thereby be unable to maintain his action; but the reasonableness or otherwise of a statutory provision which depends for its validity upon its reasonableness is not to be determined by the possibility that such a hypothetical case may arise but is to be examined in the general circumstances of the ordinary life of this country prevailing at the time the enactment comes into force."
The respondents also referred to the dictum in O'Brien v Keogh  I.R. 144, at 157 to the effect that the duty of a court in testing the constitutionality of a statutory provision was to do it "in as wide a manner as if the provision had been the subject of a reference under Article 26 of the Constitution…"
Consideration of the constitutionality of section 82(3B)(a)(i)
It is not contested that the right of the respondents, which are affected by the impugned provision, is correctly described as a right to litigate and, as such, a personal constitutional right. It, therefore, attracts the guarantee provided by Article 40, section 3, sub-section 1 of the Constitution that the State will, "by its laws…defend and vindicate [it]." It is not necessary to adjudicate on the respondents' claim that it is also a property right, which benefits from the protection of Article 43 of the Constitution. Finlay C.J., delivering the judgment of the Court in Tuohy v Courtney, noted that the plaintiff, in that case, had been unable to "point to any material difference in the constitutional protection which would apply to this right to litigate if it were on the one hand considered to be exclusively an unenumerated personal right or on the other hand if it were considered to be exclusively a constitutional property right or indeed if it were considered to be both." The Court concluded that there was no such difference and found it unnecessary to reconcile or adjudicate on some inconsistencies in the earlier case law. In this case also, it is unnecessary to go further than to state that the right claimed by the Applicants is a constitutionally guaranteed personal right.
The essential complaint which grounds the challenge to the constitutionality of the section is based on its absolute character. The Applicants claim that the absence of a power to extend the two-month time limit renders the section so unjust as to be unconstitutional. It was not argued, nor could it be, that the two-month period is, in itself, so short as to invalidate the limitation.
In the Illegal Immigrants Bill case, this Court held a two-week period not to be unconstitutional. In the legislation, there in question, there was a power to extend. It must also be remembered that the period here at issue concerns the time for bringing Judicial Review proceedings. The Rules of Court, recognising the need for certainty in relation to the status of administrative decisions, have always typically provided for limitation periods of six month or less, though accompanied by a power to extend time.
Griffin J, in his judgment in Hegarty v O'Loughran  1 IR 148, at 157, referred to the history in all common law-countries, for several centuries, of periods of limitation affecting the commencement of civil proceedings. Ultimately, disparate statutory limitations came to be codified in comprehensive schemes of limitation. Such is the Statute of Limitations, 1957.
The laying down of periods of limitation is a legislative not a judicial function. As has frequently been said, the making of such laws requires the legislature to balance conflicting considerations. An aggrieved person, a plaintiff, who has a legitimate civil claim against another, enjoys a legal right — a right also protected by the Constitution — to pursue his claim in the courts. If a plaintiff neglects or unduly delays in the prosecution of his claim, it may become unfair to expect the potential defendant to meet it after a very long period. Among the relevant considerations are fading memories, unavailability of witnesses, through death or for other reasons, the destruction of evidence or changes in circumstances rendering it unjust that a plaintiff should pursue a stale claim.
The task of weighing all relevant considerations and striking a balance in the form of a limitation period is quintessentially a matter for the judgment of the legislator. The correct approach for the courts to take has been authoritatively stated in Tuohy v Courtney. Finlay C.J., delivering the judgment of the Court, at page 47 of the report stated:
"It has been agreed by counsel, and in the opinion of the Court, quite correctly agreed, that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.
The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."
That passage, in effect restates, in the context of laws providing limitation periods, the presumption of constitutionality enjoyed by all Acts of the Oireachtas. It also sets a high standard to be met by any person impugning the constitutionality of a period of limitation.
In Tuohy v Courtney, the court was concerned with the six-year period for the commencement of actions—in that case for professional negligence against a solicitor—for financial loss. The plaintiff's complaint resembles in one respect that made in the present case. He was unaware, until a number of years after the purchase, that he had bought a house with a seriously defective title. The Court accepted that it could "not be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance."
Nonetheless, the Court proceeded, at page 48, to identify three principal objectives of a limitation period:
"The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.
Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.
Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities."
The Court then referred once more to the balancing of conflicting considerations:
"The counter-balance to these objectives is the necessity as far as is practicable, or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is to ascertain whether the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed."
The last sentence was cited by O'Caoimh J in the present case. The Court concluded that the absolute character of the six-year limitation period laid down by section 11, sub-section (2)(a) of the Statute of Limitations Act, 1957 did not render it unconstitutional. It observed that the "period of six years is, objectively viewed, a substantial period." It noted the existing provisions for extension in cases of disability, part-payment, fraud and mistake, which it considered to "constitute a significant inroad on the certainty and finality provided by the Act." It rejected one of the plaintiff's arguments to the effect that a defendant would always be protected by the existence of the power in the courts to dismiss a claim for gross and unreasonable delay within the limitation period. It did so by reason of the extensive time-scale of such proceedings and the consequent "anxiety and uncertainty for the defendant." Hence, it concluded, at page 50, that the legislative decision not to include provision for an extension relating to discoverability of the cause of action to be "supported by just and reasonable policy decisions….."
This Court has more recently had to consider the constitutionality of a limitation period in its decision in the Illegal Immigrants Bill case. The Bill referred to the Court by the President pursuant to Article 26 of the Constitution provided, as does the legislation under consideration on this appeal, that judicial review was the only permitted procedure for challenge of relevant decisions. It limited to fourteen days, dating from notification of the relevant order, notifications or decisions made in respect of non-nationals. However, the fourteen-day limit was not absolute. Section 5 (2)(a) of the Bill provided that the application must "be made within fourteen days commencing on the date on which the person was notified of the decision…… [etc.]… … unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made…."
From the judgment in the Illegal Immigrants Bill case, it is clear that the remedy of judicial review is entitled to specific protection by reason of its function of permitting the courts to control the legality of State action. The referred bill concerned state decisions affecting non-nationals. The Court described the right of access to the courts of non-nationals in such a way as to cast light on the function of the courts, under the rule of law, namely that of enabling all persons to invoke the jurisdiction to review the legality of administrative decisions. At page 385 of the report, Keane C.J., delivering the judgment of the Court said:
"It would be contrary to the very notion of a state founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the courts to enforce their legal rights. In Murphy v. Greene  2 I.R. 566 at p. 578 Griffin J. observed "it is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the courts. Stated in its broadest terms, this is a right to initiate litigation in the courts …
It may be that in certain circumstances a right of access to the courts of non-nationals may be subject to conditions or limitations which would not apply to citizens. However, where the State, or State authorities, make decisions which are legally binding on, and addressed directly to, a particular individual, within the jurisdiction, whether a citizen or non-national, such decisions must be taken in accordance with the law and the Constitution. It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity. Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective."
The Court, in dealing with the two-week, judicial-review time limit also recognized the strong public interest in certainty of decisions of administrative bodies. Keane C. J. stated, at page 392:
"There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible."
In the particular circumstances of decisions affecting asylum and immigration, it concluded that there were "objective reasons" justifying "a stringent limitation of the period within which judicial review of such decisions may be sought, provided constitutional rights are respected."
It emphasized, nonetheless, that, while it "is a matter of policy and discretion for the legislature to choose the appropriate limitation period," nonetheless, "in exercising that discretion the legislature must not undermine or compromise a substantive right guaranteed by the Constitution such as the right of access to the courts." In the special case of immigrants, the Court recognized the likelihood of the existence of "cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own…….are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days." The Court then said: "This is a situation with which the courts deal on a routine basis for other limitation basis." It concluded:
"Moreover, the discretion of the court to extend the time to apply for leave where the applicant shows "good and sufficient reason" for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period. For example counsel assigned by the court have argued that the complexity of the issues, or the deficiencies and inefficiencies in the legal aid service, may prevent the applicant from being in a position to proceed with his application for leave within the period of fourteen days."
Special considerations also affect planning decisions and the purpose of the limitation, impugned in this case, has been recognized by the courts.
The Attorney General has relied on the judgment of Costello J in Cavern Systems Dublin Ltd v Clontarf Residents Association, cited earlier. That judgment explained the object of the two-month limitation as follows:
"The object of the section was (i) to require that proceedings be instituted at a very early date to ensure that in the national interest uncertainty about future development be dispelled at the earliest possible date; and (ii) to make applicants for development permission and planning authorities aware that the legal validity of a decision was being challenged so as to give them an opportunity to apply for an adjournment of a planning appeal so as to avoid the possibility that unnecessary costs might be incurred and the time of public officials unnecessarily wasted; and to enable An Bórd Pleanála to adjourn an appeal before it if it considered it appropriate to do so during the pendency of the High Court proceedings."
While the second of those reasons --- the existence of a planning appeal --- was clearly formulated in response to the particular facts of that case, the Court fully approves the explanation given by Costello J. Applicants for planning permission should clearly be on notice at the earliest date that is reasonably possible, if a planning decision is under challenge, but not only by reason of the possible desirability of an adjournment of an appeal hearing. Where there is no appeal, or where the decision has been made on appeal, it is not desirable that developers be left unnecessarily in a state of uncertainty about whether they can safely proceed with a development. As was stated by Finlay C.J. in KSK Enterprises Limited v An Bórd Pleanála, also cited above, a person who has obtained planning permission should "at a very short interval after the date of the decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge and therefore presumably left in a position to act with safety upon the basis of that decision."
A number of helpful principles can be deduced from the case of Tuohy v Courtney and the Illegal Immigrants Bill case.
More lengthy limitation periods are laid down for civil actions between private persons or bodies. Their length is an important consideration when judging whether they are fair and just. It is not necessarily unconstitutional to omit a stipulation for extension of time for cases where the wrong was not reasonably discoverable within the longer time allowed. Anxiety, worry and cost for the defendant are important elements in those cases.
It is inherent in the principle of respect for the rule of law that citizens should have the right to challenge the legality of decisions, made under public law, by administrative bodies. Judicial review is the appropriate procedural vehicle for such challenges. There is a strong public interest in the certainty and finality of administrative decisions. Any attack on their validity should be made at the earliest reasonable date.
Common elements run through the two cases so far cited. The legislature has the primary function of balancing the competing considerations when specifying a limitation period. Nonetheless, there are obvious distinctions between common-law actions and applications for judicial review.
The reasoning of the Court in Tuohy v Courtney was, in some important respects particular to that case and is, to that extent, distinguishable. The Court was clearly very much influenced by the substantial period, six years, involved in that case. The protection of defendants from stale claims and the need for the courts to have before it oral evidence based on the accuracy of recent recollection and complete documentary evidence are less compelling justifications for the absence of a power to extend, where the limitation period is a mere two months. In this type of case, it is very much less likely that recollection will not be fresh or that relevant documents will not be available. If they were not, a court would be less likely to exercise a power to extend. The Court, in Tuohy v Courtney, also identified, as a third justification, the desirability of certainty in respect of claims, a matter which has been clearly identified as the prime consideration in the case of planning decisions.
The imperative of certainty in administrative decisions, both in the general sense explained in the Illegal Immigrants case, and in the particular context of planning decisions must be weighed against the equally important principle laid down in that case, that, in a state based on the rule of law, any person affected by an administrative decision, has a constitutionally protected right of access to courts to contest its legality.
It has been said that the planning code is entirely a creature of statute. In its modern form, introduced into this State in 1963, it restricts the rights of owners of land by prohibiting them from building on or developing them without the benefit of a permission granted by a public authority. The Courts have consistently interpreted the legislation as providing for a scheme for development in which the interested parties are not only the applicant for permission and the planning authority but also members of the public who may be interested in or affected by development. Hence, it is obligatory to give public notice of intended developments. A development may affect the environment generally, but is most likely to affect the amenities of those living or working closest to the proposed site. It follows that persons, such as the respondents, have a right to reasonable notice of what is proposed. Unlike non-nationals, affected by the Illegal Immigrants (Trafficking) Bill 1999, the respondents were not entitled to actual notice of an application, but only that proper public notice should be given in compliance with the statutory provisions. It is not contested that the Applicants could not reasonably have known that the Notice Party had, on foot of a requirement of the planning authority, been required to lodge substantially modified plans. The planning authority had not required any new public notice. The Court has decided that this decision was based on an incorrect interpretation by the planning authority of its discretionary power under the Regulations and that this failure was such as to undermine the validity of the planning permission. It follows that the Applicants were deprived of any reasonable opportunity to challenge the validity of the planning permission by an unlawful act of the planning authority within the two-month limit. Nonetheless, the effect of section 82(3B)(a)(i) is to deny the Applicants any opportunity to ask the High Court, even in these circumstances, to extend the time.
Counsel for the Attorney General claimed that the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992 and urged the Court to accept that this demonstrated that the choice was not irrational. While it is legitimate for the Attorney General to rely on the re-enactment of the provision, it must, therefore, be equally relevant to note that section 50 of the Planning and Development Act, 2000 permits an extension of the eight-week time limit there enacted where "there is good and sufficient reason for doing so." While counsel is right to say that the latter provision does not necessarily imply that section 82(3B)(a)(i) is unconstitutional, it is a useful and relevant indicator of what may be considered fair and just in such an enactment. Moreover, the Oireachtas may indeed, having regard to the considerations addressed above, be entitled to fix an absolute time limit of a short duration, such as two months, where the persons to which it applies have in fact had a full opportunity to bring proceedings within that limited period but that is not the situation here for the reasons already explained.
The Court considers that section 82(3B)(a)(i) constitutes an injustice to such an extent that in exercising its discretion to exclude any power to extend time for cases such as the present, the legislature undermined or compromised a substantive right guaranteed by the Constitution, namely the right of access to the courts. The Applicants, through no fault of their own, but through the unlawful act of the decision-maker was deprived of any genuine opportunity to challenge the legality of the decision within the permitted time. For these reasons, the Court concludes that the High Court was correct in holding that the provision in question is repugnant to Article 40 section 3 of the Constitution. It dismisses the appeal.
THE SUPREME COURT
44, 46 & 47/03
MAUD WHITE and MICHAEL WHITE
DUBLIN CITY COUNCIL
IRELAND and THE ATTORNEY GENERAL
JUDGMENT delivered on the 10th day of June, 2004 by FENNELLY J.
This case concerns a most unfortunate dispute between neighbours regarding a grant of planning permission.
The Applicants (whom I will refer to as "the Whites") are the joint owners of number 10 Park Lane, Chapelizod, Dublin 20. The Notice Party (whom I will refer to as Mr Tracey) owns and lives in the adjoining house, number 11. Both dwellinghouses are adjacent to Phoenix Park. The Whites originally acquired the land on which the houses are now built about 1986.
There was a substantial amount of open space or garden in the curtilage of number 11. The case concerns Mr Tracey's attempts to get planning permission for a new house to be built on this ground. There were some earlier planning events, but these are of only passing relevance. Mr Tracey obtained planning permission for an extension about 1993, but did not proceed with it. The Whites obtained planning permission for and built a conservatory to the rear of their house. There was no difficulty or conflict between the parties regarding these matters.
Number 10 adjoins number 11 at a slightly unusual angle. For the purposes of this appeal, the crucial fact is that the rear garden of number 10, the Whites' house, lies to the east of the site of Mr Tracey's proposed house.
In June 1999, Mr Tracey, through his architect, applied for planning permission to build "a two storey, with attic, single family dwelling on land adjacent to an existing house on Park Lane, bordering Phoenix Park." The required public notices were given. Mr Tracey showed the Whites copies of the drawings that had been lodged. He drew attention to the east elevation to indicate that there would be no windows in that elevation, the one facing the Whites' property. He also pointed out that two windows on the proposed south elevation nearest to the Whites' boundary would contain obscure glass.
The Whites consulted an architect, who inspected the planning application (reference 1822/99) and advised them that the proposed development would not overlook or overshadow their property. He also advised that Mr Tracey was unlikely to get planning permission. Although the Whites were unhappy with the height of such a development close to their boundary wall, they decided, in view of the architect's advice, and, in particular, the fact that they would not be overlooked, as well as in the interests of good prior neighbourly relations, that they would not object to the application and they did not do so. Nonetheless, permission was refused by the first-named Respondents/Appellants, then called the Mayor, Aldermen and Burgesses of Dublin, or Dublin Corporation. The title to the proceedings has been amended to refer to the latter under the name of Dublin City Council (hereinafter "the planning authority"). The Decision Order refusing permission was made on 5th August 1999.
The reasons for refusal related principally to the height and size of the proposed development. One reason related to the fact that its "window orientation" would result in a "high degree of overlooking" of Phoenix Park. Another reason stated that "due to its height, size, design and position in relation to immediately adjoining property [it] would be seriously injurious to the amenities of such property through overshadowing and visual obtrusion."
In short, the permission was refused for the potential of the proposed dwelling to overlook Phoenix Park, but not the residence or garden owned by the Whites. This was because the plans were so drawn that the house would not, in fact, overlook the Whites' property.
Mr Tracey was unhappy with this decision. He felt, rightly or wrongly, that he had been led to believe by two planning officials that his proposals were acceptable from a planning point of view. While he was aware that planning officials could give no binding commitments and the decision-making power of the planning authority could not be fettered by exchanges between developers and officials, there had been no objections to the development. He was not expecting to receive a refusal on such comprehensive grounds. It is unnecessary to decide the merits of this dispute or misunderstanding or even if there was one. Neither of the two officials who dealt with Mr Tracey's first application was called as a witness in the High Court. The background is important only for the light it casts on the handling of Mr Tracey's second application, to which I now turn.
Firstly, however, it should be noted that Mr Tracey, in early September 1999, lodged an appeal with An Bórd Pleanála against the refusal of the first application.
By a new application, lodged with the planning authority on 17th September1999, Mr Tracey's architect applied for permission for "the construction of a new two storey with attic single family dwelling of a nett area of 130 sq. metres." The second application was very substantially similar to the first. The public notice was identical. The application stated: "Due to the location of the existing house and its neighbour, views are only permissible to the north and west from the proposed house, in order to avoid overlooking." In this respect, therefore, there was no change. The principal variations, compared with the first application were: floor area was reduced by 3 square metres; the site was moved slightly forward toward Park Lane and away from the Whites' boundary; a balcony which would have overlooked Phoenix Park was eliminated. The Whites' architect when he later - after the grant of permission - inspected these plans, considered these alterations to be extremely minor and designed only to make the application appear sufficiently different from the first application to constitute a new application.
In October 1999, Mr Tracey wrote to the planning authority, enclosing a letter from his architect, to express dissatisfaction with what he considered to be the unsatisfactory manner in which the earlier application had been handled. Mr Tracey stated that he had fulfilled the requirements of the planning officer before submission and that he was "shocked when permission was refused on totally different grounds." He claimed that he had had a similar experience with another officer. Both these officers had left, it was said, without passing on their views. The architect asked for the name of the new officer in charge in order to arrange a meeting to discuss the background to a design which had earlier been considered to be acceptable.
Mr Kieran Rose, Senior Executive planner with the planning authority received and considered this correspondence. He said in evidence in the High Court that he regarded the complaints made as being serious in terms of a public authority and its dealings with an applicant for planning permission. He arranged a meeting which took place on 29th November 1999. This was attended by Mr Tracey, his architect and a planning expert as well as four planning officials. These were Mr John Martin, Deputy Chief Planning Officer, Mr David Dunne, Chief Planner, Mr Kieran Rose, Senior Executive Planner and Mr Michael McGinty, Executive Planner. Mr Tracey and his representatives reiterated their displeasure at the manner in which he claimed to have been treated, as outlined in his letter. Mr Rose expressed regret at these matters, but disputed, in his evidence, that this expression amounted to an apology.
The discussion then focused on ways in which the application could be modified so as to address the reasons given for refusal of the first application and to make it acceptable in terms of proper planning and development. In particular, the meeting considered Reason Number 4 of the earlier decision which concerned the location of the proposed dwelling in the garden area of an existing house and which would result in inadequate curtilage for both houses with "consequent serious injury to the amenities of property in the vicinity."
The planners were conscious of the position taken by the planning authority in refusing the first application. "The changes in the first application were not," as Mr Rose put it "sufficient to warrant a change of decision." Mr Dunne proposed that notice might be given to Mr Tracey pursuant to Article 35 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994) inviting Mr Tracey to submit revised plans or drawings modifying the proposed development. As will be seen, when I come to consider Article 35, it operates when the planning authority is disposed to grant permission subject to such modifications. It is clear, therefore, that the entire tenor and substance of the meeting was that Article 35 would be employed so that Mr Tracey would modify the application in such a way as to be acceptable to the planning authority and that permission could be granted without appearing to conflict with the earlier refusal. It was central to this approach that the second application, as it stood, was insufficiently different from the first to justify the planning authority in deciding to grant permission for a development so similar to one which it had recently rejected. Mr Tracey was confident, following the meeting, that he would get his permission, by following the Article 35 procedure. His confidence was such that he withdrew his appeal to An Bórd Pleanála. There was no discussion as to whether Mr Tracey would be required to publish any new notice of the application.
In the period following the November meeting, Mr Tracey's architect effectively agreed the modifications with the planning authority. These procedures also made it necessary to extend the time for dealing with the application. Four extensions of time were agreed with the applicant and were made the subject of decisions on 10th November, 1st December 1999 and 26th January and 23rd March 2000.
The modifications actually made were indicated on 25th January 2000. Mr Rose sent an internal memorandum to Mr McDonnell, saying that discussions had been held with the applicant's architect and representatives of the planning department and that "it was agreed that the following changes would allow a favourable decision." He proposed asking Mr Tracey to submit revised plans under Article 35 and specified the modifications that should be required. The planning authority wrote formally, on the direction of the Assistant City Manager, to Mr Tracey on 14th February and in accordance with the terms of Mr Rose's memorandum, to the following effect:
"I recommend the applicant to submit revised drawings under Article 35 of the Planning Regulations as follows:
(a) Bring forward the buildings to the street frontage.
(b) Confine the dormer to the rear.
(c) Provide private open space for existing and proposed houses to Development Plan standards.
(d) Reorientate ridge to a north south line.
(e) No increase in the footprint of the building.
(f) A high quality design and finish on all areas visible to the public."
Paragraph (d), as Mr Rose accepted in evidence, would have the effect of altering the orientation of the proposed house through ninety degrees; windows, formerly facing north would now face east. Simply put, the former position where the Whites would not be overlooked would now be changed. Revised drawings were submitted on behalf of Mr Tracey on the 21st February 2000. A decision to grant planning permission was made on 20th March 2000. Planning permission issued on 4th May 2000.
The Whites were not aware and were not made aware of the changes that became incorporated into Mr Tracey's application, following the implementation of the Article 35 procedure. From the foregoing summary, it can be seen that the modified plans were not lodged until 21st February 2000 and the decision to grant was made on 20th March 2000. Because the Whites did not object to a development which would not overlook their property, they did not register any objection with the planning authority. If they had, they would have been informed of the modifications. Even if they had been exceptionally vigilant in inspecting the planning file, they would have found nothing untoward until after 21st February 2000.
Mr Tracey informed the second-named applicant on 26th May 2000 that he had obtained planning permission. The latter inspected the planning file on 29th May 2000 and learned for the first time that modifications had been made to the drawings and that these formed the basis for the grant of permission. He stated that he was shocked to discover this, as Mr Tracey now had planning permission for a house with six windows on the east elevation and two windows on the north elevation. He subsequently had a conversation with Mr Tracey, who said that the planning authority had forced him to change the plans.
Article 35 makes no provision for readvertising applications, following the submission of modified plans or drawings, pursuant to a requirement of the planning authority. The planning authority has, however, power, under Article 17(3) to require new public notices.
Mr Rose, in his internal written communication of 25th January 2000 to Mr McDonnell made no reference to whether a new public notice should be required. He simply did not mention the matter. In his evidence, in the High Court, he said that it was a matter "for the judgement of the planning authority" whether a new public notice was necessary. He did not "consider it necessary to readvertise the proposed development." He explained his reasons for this conclusion very fully. It is sufficient, for the purposes of this appeal, to say that, on the central issue of "overlooking," he did not consider the change to be significant. He laid stress on the village location of the development. There would be no greater degree of overlooking than might be expected in a suburban site. He concluded that the particular level of overlooking was acceptable.
The Proceedings to Date
The Whites served Notice of Motion seeking Judicial Review of the decision of the planning authority on 13th September 2000. This was, of course, outside the two-month time limit for challenging planning decisions laid down in section 82(3B)(a) of the Local Government (Planning and Development) Act, 1963 as inserted by section 19 of the Local Government (Planning and Development) Act, 1992. Accordingly, the Whites included in their Judicial Review application an application for a declaration that this provision is invalid, having regard to the provisions of the Constitution.
On the assumption that the two-month time limit was unconstitutional, and on the further assumption that the court would have power to extend any applicable time limit, the Whites considered that they would need to get the time extended and they made an application for amendment of the Judicial Review grounds so as to include an application for an extension of time pursuant to Order 84, rule 21 of the Rules of the Superior Courts. However, they commenced their application within six months from the making of the impugned decision.
The High Court made orders declaring that the Whites had locus standi to challenge the validity of the section and granting leave to apply for Judicial Review.
The full Judicial Review proceedings were heard by O'Caoimh J in the High Court over five days in January and February 2002. The hearing consisted of consideration of a large number of affidavits and the cross-examination of a number of witnesses.
O'Caoimh J dealt, firstly, with the non-constitutional issue. He thought that the decision-making process was "very far from transparent and appear[ed] to have been conducted in a manner to ensure that the Applicants would not be aware of the nature of the proposed grant of planning permission prior to its grant." He though that the use of the Article 35 procedure had resulted in the grant of a permission very far removed from the initial application made in September 1999. He considered that the exercise of the discretion conferred by Article 17(3) of the Regulations should be viewed in the overall context of the Planning Acts and the need for transparency in the decision-making process. He did not see how "a planning authority could not consider that re-notification or re-advertising was not necessitated in view of the very fundamental change effected between the planning permission sought and the ultimate decision to grant planning permission with the "modifications.""
O'Caoimh J, in his judgment of 25th May 2001, outlines the facts surrounding the period between the time the Whites learned of the planning decision and the issue of proceedings in September, but does not appear specifically to have addressed the issue of extension of time. Where the section contained no provision for an extension of time, he considered it idle to speculate on what the outcome would have been, if it had. It seems that the application for Judicial Review was commenced within the normal period of six months for an application for certiorari. At any rate, no point on this issue has been raised on the hearing of the appeal. O'Caoimh J declared the section to be unconstitutional and granted an order of certiorari in relation to the decision to grant planning permission. He also certified, pursuant to section 82 (3B)(b) of the same act, that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court. The certified point is:
"In the light of the discretion vested in a local planning authority such as Dublin City Council to decide whether any proposed modifications in an application for planning permission warrant fresh notices and re-advertising is it open to a court to conclude in a given case that the decision is unreasonable or irrational notwithstanding any purported explanation for the decision taken."
The central point made on behalf of the Whites may be made quite simply. The development envisaged in the original application would have contained no windows overlooking their property. The planning authority required that the application be modified so as to orientate windows in an easterly direction which would, indeed, overlook their property, i.e., their rear garden. They were aware of the application as lodged. They had been given the plans of the first application and had caused it to be inspected by an expert planner. They had - correctly - been informed that the second application was closely similar. Therefore, they had not objected. They were unaware of the modifications which had the effect of reorientating the windows so as to overlook their property, as they had never been advertised.
The planning authority and Mr Tracey respond that it was a matter for the planning authority to decide whether a new notice should be required. They were not obliged to do so. Article 17(3) is discretionary. Mr Rose duly and properly considered this issue from the point of view of the proper planning and development of the area. The court should not overrule his decision merely because it disagrees with him. He gave ample reasons for his decision, which cannot be regarded as irrational.
Priority between Constitutional and other Issues
The Whites' claim is, of course, prima facie, statute-barred. It is not contested that, in order to succeed, they have to show that section 82(3B)(a) of the Act of 1963, as amended is unconstitutional. The planning authority suggests, in its written submissions, that it may be appropriate to consider the constitutional issue in advance of the other issues. If the section is not unconstitutional, there is no need to reach a conclusion on the planning issue. That approach is not permissible.
It is well-established in the case law of this Court that a challenge to the constitutionality of a statute will not normally be addressed until the person mounting the challenge shows that he is affected by the provision. Finlay C.J. stated that it is clear from the "jurisprudence that the Courts should not engage in the question of the possible invalidity of an Act of the Oireachtas unless it is necessary for its decision to do so." (McDaid v Sheehy  I.R. 1 at page 17.) Where there are points which do not entail such a question, it follows that they must be dealt with first. If they are decided against the party raising the constitutional question, the latter will not normally be reached. Alternatively, as in Roche v Minister for Industry and Commerce  I.R. 149, a party may succeed on a non-constitutional ground. In that case, the court declared invalid, for non-compliance with a statutory provision, an order made by the Minister under the Minerals Development Act, 1940. The plaintiff, therefore, succeeded in his objective and this Court was unanimously of the view that it was unnecessary to deal with the validity of the section.
A possible exception is recognised in two judgments. O'Higgins C.J. in M. v An Bórd Uchtála  287, at page 293, thought that "there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger [i.e. constitutional] enquiry necessary." Finlay C.J. in Murphy v Roche  expressed the view that the principle must be subject in any individual case to the overriding consideration of doing justice between the parties.
When considering the consequence of that principle for the present case, it is most material to consider the case of Brady v Donegal County Council  I.L.R.M. 282. In that case, the planning issue was whether the newspaper, the Derry Journal, in which a notice of a planning application for County Donegal was published, circulated in the area of the proposed development. Costello J, in the High Court, without deciding that preliminary issue of fact, entered on a determination of the constitutionality of the statutory provision at issue in the present case. His attention was not drawn to the case law, referred to above (insofar as it had been decided at that time). He decided that the section was unconstitutional. In this Court, Finlay C.J., speaking for a unanimous court, held that, without a determination of whether the newspaper circulated in the area of the proposed development, the Court should not consider the constitutional question. The plaintiffs had no locus standi unless that was decided in a particular way. Therefore, the entire matter was remitted to the High Court.
In my view, the logic of those decisions is that it would not suffice for the Whites to show that they wish to impugn the validity of the planning permission. It is, no doubt, possible to say that it would be simpler and more convenient for the court to address the constitutional issue first. However, there is no overriding consideration, in the interests of justice, for departing from the normal rule. I am satisfied that it must be shown that their claim is well-founded, in short that it would succeed. If, on the other hand they fail on the planning issue, it will be unnecessary to consider the constitutional issue.
Conclusion on the Planning Issue
O'Caoimh J effectively considered that the decision of the planning authority not to demand that Mr Tracey re-advertise his application, having regard to the modifications required through the Article 35 procedure, was so unreasonable as to be irrational. Consequently, the Whites were deprived of any reasonable opportunity to object. This invalidated the decision to grant permission.
Article 35 of the Regulations provides:
"Where a planning authority, having considered a planning application, are disposed to grant a permission or an approval subject to any modification of the development to which the application relates, they may invite the applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the said development and, in case such plans, drawings or particulars are submitted, may decide to grant a permission or an approval for the relevant development as modified by all or any such plans, drawings or particulars."
As already stated, this Article, in itself, does not require the publication of any new notice. The relevant provision is to be found in Article 17(3), and is as follows:
(a) plans, drawings or other particulars are submitted to a planning authority by an applicant in response to an invitation under article 35, or
(b) [not relevant]
the planning authority may, where they consider it necessary so to do, require the applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement."
The key elements of fact should here be recalled. Mr Tracey had made and had advertised two successive applications for planning permission for the construction of a dwellinghouse in the garden curtilage of his house at Number 11 Park Avenue. The Whites were aware of both the first and the second application. Mr Tracey had shown them the plans of the first and had demonstrated that their garden at Number 10 would not be overlooked. The first application had been refused, inter alia, because the planning authority considered that the proposed development would be visually obtrusive and, for that reason, seriously injurious to the amenity of adjoining property. The planning authority were on notice from the first application and the appeal lodged on behalf of Mr Tracey that the development as notified did not overlook the Whites' property and that the plans had been shown to them in order to demonstrate this fact. In a letter accompanying the second application, Mr Tracey's architect repeated that "due to the location of the existing house and its neighbour, views are only permissible to the north and west from the proposed house in order to avoid overlooking."
The planning authority, and, in particular, Mr Rose considered that Mr Tracey had legitimate grounds for complaint about the manner in which the first application had been handled. For that reason, a special meeting was, quite reasonably, arranged for Mr Tracey and his advisers with a number of senior planning officials. The discussion turned to addressing the reasons for refusal in such a manner as to devise modifications which would enable planning permission to be granted. In the view of the planners, the second application was not sufficiently different from the first to warrant a departure from the position adopted in the refusal of that first application.
The procedure under Article 35 was identified as the means by which these twin objectives would be achieved. The application would be sufficiently altered to justify a departure from the refusal and the new application could be granted.
The crucial element in the required modifications which were identified was that orientation of the proposed house would be turned ninety degrees. The result would be that, instead of being merely visually obtrusive to the occupants of Number 10, the proposed house would overlook the garden of Number 10.
In this situation, Mr Rose seems to have made the crucial decision that the amount of overlooking would not be significant and that, consequently, the planning authority should not exercise its statutory power to require Mr Tracey to publish any new notice of the application. The consequence was that the Whites had no reasonable means of knowing that the plans had been altered in this way. To compound this aspect of the matter, because they had been prepared to accept the "visual obtrusion" of the first version with no overlooking, they had not lodged any objection with the planning authority. If they had, they would have been informed of the modifications.
It now has to be decided whether this decision can properly be described as so irrational as to warrant the quashing of the permission. The test of irrationality is propounded authoritatively in the judgment of Henchy J, with which the majority of the Court agreed, in The State (Keegan) v Stardust Compensation Tribunal  I.R. 642 at page 658:
"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."
In O'Keeffe v An Bórd Pleanála  1 I.R. 39, Finlay C.J. applied these principles with particular force to planning decisions. He said, at page 71:
"These considerations, described by counsel on behalf of the appellants as the height of the fence against judicial intervention by way of review on the grounds of irrationality of decision, are of particular importance in relation to questions of the decisions of planning authorities.
Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters."
It is argued on behalf of the planning authority and of Mr Tracey that the evidence of Mr Rose showed that he had considered all relevant matters. He acted as an expert planner. He had knowledge, experience and expertise in all relevant aspects of the matter. According to Mr Rose, "there is always a degree of overlooking of rear gardens from adjoining houses." He said that it was his judgment as a planner and that of the planning authority that "the particular level of overlooking was acceptable." Although he acknowledged in evidence that the Whites would not know of the modified drawings, he considered that new public notices were not necessary.
I would certainly be prepared to accept that the Court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr Rose were a substantive decision of the planning authority or of An Bórd Pleanála to grant planning permission in spite of the degree of overlooking of the Whites property, in circumstances where the Whites had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.
I believe, however, that Mr Rose's reasoning was flawed. He was, in reality, acting as if he was deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the planning authority, whether some members of the public might reasonably wish to object to the plans as modified. Much was made in argument of the fact that the statutory notices are for the benefit of the public and are not directed to any individuals. That is an unduly narrow interpretation. The members of the public likely to be most closely affected by a planning application are the nearest neighbours, a fact implicit in the reasons given for the original refusal. Mr Rose, by assessing the degree of overlooking without allowing for the possibility of objection, was effectively deciding, without hearing possible objectors, that there was no reasonable basis for objection.
Mr Rose should have considered the history of the two applications. The first and the unmodified version of the second application were, as is common ground, very similar. In particular, they did not involve overlooking of Number 10 and there was very specific reference to the lack of overlooking. He should have realised that the planning authority was requiring modifications precisely to differentiate the plans sufficiently from the notified application. He should have appreciated that the essential modification being required by the planning authority would necessarily and automatically substitute overlooking for visual obtrusion and that Mr Tracey had specifically informed the planning authority that the neighbours had been shown the plans on the basis that there would be no overlooking.
I do not say that the planning authority's decision was irrational in the broad sense. Mr Rose's planning expertise is undoubted. I consider rather that Mr Rose, on behalf of the planning authority, excluded from his consideration the likelihood that the Whites would want to object and that, if they did, the planning authority would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational. The planning authority created a dilemma for itself by requiring modifications in order to differentiate the second application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless, not sufficiently different to warrant a new public notice. This is a very fine line to tread. This factor is special to this case. It would not arise in every case of Article 35 modifications. Article 35 accords a substantial discretion to a planning authority and clearly envisages a wide range of cases in which modifications to a planning application should not require new public notices but the radical nature of the changes to the application in this case make it exceptional. In this case, there should have been new notices, which should have included mention of modified plans. For this reason, I would answer the point certified by O'Caoimh J in the sense that it was open to him, in the circumstances of this case to conclude that the decision of the planning authority, having required modifications to the application as lodged, not to require that it be re-advertised by new public notices was unreasonable and irrational.
For these reasons, I would uphold the decision of the learned High Court judge on the planning issue. The Whites are entitled to an order of certiorari quashing the decision to grant planning permission, subject to the effect of the two-month time limit, which is considered in the judgment of the Court.