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Hynes v. An Bord Pleanala [1997] IEHC 182 (10th December, 1997)

THE HIGH COURT

1997 No. 317 J.R.

JUDICIAL REVIEW

BETWEEN

ANNE HYNES

APPLICANT

AND

AN BORD PLEANALA,

PATRICK JOYCE,

THE MAYOR, ALDERMEN AND BURGESSES OF THE COUNTY

BOROUGH OF GALWAY AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Miss Justice Laffoy delivered on the 10th December, 1997

1. This is the Applicant's application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts, 1986 for the following reliefs:-

(1) an order of certiorari to quash a decision of the first Respondent ("the Board") made on 25th June, 1997 to grant planning permission to the second Respondent ("the developer"); and

(2) a declaration that section 14(8) of the Local Government (Planning & Development) Act, 1976 (the Act of 1976) is unconstitutional through being inconsistent with Article 43.2 of Bunreacht na hEireann in failing to adhere to the requirements of social justice and the obligation to limit the exercise of private property in accordance with the exigencies of the common good.

2. Section 82 of the Local Government (Planning & Development) Act, 1963, (the Act of 1963), as amended by section 19 of the Local Government (Planning & Development) Act, 1992 (the Act of 1992), provides in subsection (3B)(a) that an application for leave to apply for judicial review under Order 84 in respect of a decision of the Board on any appeal shall be made by motion on notice to the Board and each party to the appeal and such leave shall not be granted unless the Court is satisfied that there are "substantial grounds for contending that the decision is invalid or ought to be quashed". In Scott -v- An Bord Pleanala [1995] 1 I.L.R.M. 424, the Supreme Court held that an applicant applying for leave under section 82(3B) does not have to satisfy the Court that the impugned decision was in fact invalid. The function of the Judge on such application is to decide whether there are substantial grounds for contending that the decision is invalid and, if there are, leave should be granted. It is for the Judge hearing the substantive application to decide whether the decision is invalid. As to the meaning of the epithet "substantial" in section 82(3B), Egan J., with whom the other Judges of the Supreme Court concurred, said:-

"I fall back on a word which is often used as a test in legal matters. It is the word 'reasonable' and I suggest, therefore, that the words 'substantial grounds' require that the grounds must be reasonable."

3. In her judgment in McNamara -v- An Bord Pleanala [1995] 2 I.L.R.M. 125, Carroll J. outlined the approach to be adopted on an application for leave in determining whether there are "substantial grounds" for contending that a decision of the Board is invalid in the following passage at page 130:-

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are 'substantial'. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it as sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the Applicant is confined in his arguments at the next stage to those which I believe may have some merit."

4. I respectfully agree with the construction of section 82(3B) set out in the above passage. I propose adopting the approach suggested by Carroll J. but I make an additional observation, namely, that, if I am not satisfied that any ground advanced by the Applicant in support of her contention that the Board's decision is invalid is not a substantial ground, I consider that I may give reasons for that conclusion insofar as I consider appropriate by reference to the submissions made at the hearing.

5. The chronology of events which led to the decision of 25th June, 1997 and which forms the factual backdrop to this application can be summarised as follows:-

(a) On 15th July, 1996, the third Respondent ("the Corporation") received an application for planning permission from the developer. The application, which was dated 12th July, 1996, was on the Corporation's standard Planning Application Form. The proposed development was briefly described as the erection of three detached houses, one manager's apartment, a community centre, shops/retail areas including related offices and storage, banking facilities and petrol filling station. The postal address of the site was given as Shangort, Galway, and its area was given as 1.69 hectares. Question 4 on the form required the applicant to state the applicant's legal interest in the estate or site (freehold, leasehold, etc.) and there followed a caveat that, if the applicant was not the owner, to "enclose from owner consent form to making of application". The answer given to question 4 by the developer was "owner". The application was accompanied by six drawings, one of which, drawing 01, was a site plan. This depicted a roughly triangular shape site bounded on the north by Shangort Road, on the west by Clybaun Road and on the south by a road from Galway city centre to Barna which I understand to be the Kingston Road. Part of the area for development shown on the site plan was indicated as being represented by the letters a-b-c-d-a and as being -

"land subject of CPO by Galway Co. Co. for future road widening ".

6. The part in question, which it has to said is not easily identifiable, constituted a strip of land on the Clybaun Road frontage widening out into a roughly triangular shaped area at the junction of Clybaun Road and Kingston Road. The development, as depicted on the site plan, on this part, which for the sake for clarity I will refer to as "the area in issue", would have comprised a planted and grassed area and about a dozen car parking spaces. It is common case that the area in issue was not and is not owned by the developer. It was and is owned by the Corporation, having been acquired around 1982 by Galway County Council for road widening purposes and having subsequently devolved to the Corporation in consequence of the alteration of the County Borough boundary. The evidence adduced by the Applicant is to the effect that the overall area of the development site is 3.9 acres, the area in issue measuring about 0.75 acres. The evidence adduced by the Corporation is that overall the development site comprises 4.176 acres, whereas the area in issue measures 0.58 acres. It is not necessary to resolve this conflict of fact and, in any event, it would be inappropriate to attempt to do so on this application.

(b) There was very considerable interest in the Galway area in the developer's application. The evidence adduced by the Corporation is that over 300 parties made representations to the Corporation in respect of the proposed development. The Applicant, who lives in the area, and who believes that the implementation of the development would adversely affect her quality of life and that of her family, sent a letter of objection to the proposed development to the Corporation in or around late summer of 1996.

(c) The development site was located in an area zoned for residential use in the Corporation's Development Plan of 1991. It is common case that the proposed development constituted a material contravention of the development plan and that the Corporation could only grant permission for the development if the requirements of section 26(3) of the Act of 1963 were complied with which, inter alia, required the passing of a resolution by the elected members of the Corporation requiring that a decision to grant permission be made, the resolution being passed by not less than three-quarters of the total number of members of the Corporation, fractions being disregarded.

(d) Before the matter came before the elected members, on 2nd December, 1996, the acting Assistant Town Clerk wrote to the developer in connection with his planning application in the following terms:-

"I wish to refer to earlier discussions regarding the above. I am to confirm that Galway Corporation have no objections to you including land owned by Galway Corporation for the purpose of submitting the planning application. Please note that this does not confer any right or legal title to the lands in question, and that in the event of the corporation disposing of the lands, the disposal will be subject to approval of the City Council, and to normal statutory and legal procedures."

7. The Applicant contends that this letter was not put on the Corporation's planning file, which by law is required to be open for public inspection, until 11th June, 1997. This contention is not controverted by the Corporation and the documentary evidence adduced on this application supports the Applicant's contention. While the letter to the developer post-dated the developer's application by more than four months, Martina Moloney, the Assistant Town Clerk, averred in an affidavit sworn by her on this application on 24th November, 1997 that the developer's application was made with the approval of the Corporation from the outset, to ensure that if a development took place it would incorporate the area in issue "in the interests of proper planning and development".

(e) The resolution under section 26(3) of the Act of 1963 came before the City Council on 9th December, 1996. While the resolution was passed, it was not passed by the three-quarters majority required by section 26(3). One member of the City Council, Margaret Cox, has sworn an affidavit in these proceedings in which she averred that at no stage up to and including the 9th December, 1996 was she aware that the lands the subject matter of the application for planning permission included lands owned by the Corporation.

(f) On 10th December, 1996, the City Manager made an order refusing the grant of permission on foot of the developer's application and the reason ascribed for the refusal was that the proposal would contravene the zoning provisions of the Galway County Borough Development Plan, 1991.

(g) On 9th January, 1997, the developer lodged an appeal with the Board against the decision of the Corporation.

(h) In early February 1997, Messrs. Kennedy Fitzgerald, the solicitors acting for the Applicant on this application, commenced corresponding with the Board in relation to the appeal on behalf of the Knocknacarra Combined Traders Association and each of the members thereof. The following is a summary of the course of the correspondence insofar as it is relevant to the issues which arise on this application:-

(i) In their letter dated 7th February, 1997, Messrs. Kennedy Fitzgerald, while acknowledging that their clients did not have a statutory right to request an oral hearing in relation to the appeal, strongly recommended to the Board that an oral hearing be heard for the purposes of determining the appeal, the primary reason advanced for the recommendation being that the proposed development was entirely contrary to the development plan and the secondary reasons advanced being the huge number of objections to the application when the matter was before the Corporation and the scale of the proposed development. Messrs. Kennedy Fitzgerald transmitted to the Board a submission prepared by Messrs. Mooney & Associates on behalf of the Knocknacarra Combined Traders Association.

(ii) In response, by letter dated 14th February, 1997, the Board acknowledged receipt of the submission and stated that the observations in relation to the appeal would be taken into consideration when the appeal was being determined.

(iii) Following an exchange of letters in which Messrs. Kennedy Fitzgerald queried whether a decision had been made by the Board in relation to the holding of an oral hearing and, if so, what the decision was and a reply from the Board indicating that the Board had not received a request for an oral hearing from any party to the appeal, the time for such a request having expired, on 11th March, 1997, Messrs. Kennedy Fitzgerald wrote to the Board pointing out that the question of whether the appeal be dealt with by way of oral hearing or otherwise was entirely at the discretion of the Board and querying whether a decision had been made to deal with the appeal by way of oral hearing or otherwise and, if it had been decided not to utilise the oral hearing procedure, what the Board's reasons were for that decision.

(iv) By letter dated 3rd April, 1997, the Board apprised Messrs. Kennedy Fitzgerald that the position was as had been previously indicated but, if the Board should decide, during the course of an appeal, to hold an oral hearing, they would be notified.

(v) This elicited a letter dated 25th April, 1997 from Messrs. Kennedy Fitzgerald to the Board pointing out that the Board's discretion whether or not to hold an oral hearing must be exercised in a judicial manner. The Board was requested to state whether it had made a decision to deal with the appeal by way of oral hearing and, if so, what the decision was. Legal proceedings were threatened.

(vi) By letter dated 6th May, 1997, from the Board to Messrs. Kennedy Fitzgerald, it was stated that in an appeal such as was pending before the Board, where no request to hold an oral hearing had been received from any of the parties, there was no provision that would require the Board to notify parties or observers that an oral hearing is not being held.

(vii) On 13th May, 1997, Messrs. Kennedy Fitzgerald wrote to the Board again making the point that natural justice required that their client should be notified of the Board's decision in relation to what they called the preliminary issue of an oral hearing and they stated that, should the Board allow the appeal without having convened an oral hearing and without having advised them of the Board's decision not to hold an oral hearing, they would immediately seek to judicially review the Board's decision and to quash any planning permission which the Board might purport to grant.

(viii) In response, by letter dated 19th May, 1997, the Board stated that the appeal was being dealt with by way of written submissions. The question of dealing with the appeal by way of an oral hearing had not arisen and, consequently, this was the only decision in that regard which could be conveyed to Messrs. Kennedy Fitzgerald. The appeal would continue to be dealt with by way of written submissions. It was stated that the Board was aware of their client's position but was also mindful of its statutory obligation to determine appeals within four months.

(i) The decision of the Board on the developer's appeal was made on 25th June, 1997. That is the decision which it is sought to quash on this application. It was a decision to grant permission for the development in accordance with the plans and particulars but subject to twenty conditions specified. The reason ascribed for the decision was that it was considered that the proposed development, by reason of its size, location and design, represented a suitable commercial development within this rapidly expanding suburban area and, subject to compliance with the stipulated conditions, would be acceptable in terms of traffic safety and convenience, would not seriously injure the residential amenities of the area or otherwise be contrary to the proper planning and development of the area.

(j) On 25th June, 1997, the Board recorded that it had considered it appropriate to determine the appeal on the written submissions received and that an oral hearing would not be necessary.

(k) The Board's decision of 25th June, 1997 was broadly consistent with the recommendation of its inspector, Robert Ryan, Senior Planning Inspector, as set out in his report to the Board of 20th June, 1997. The Applicant has highlighted three passages in the inspector's report, namely:-

(i) The following passage on page 27:-

"In deciding this appeal the Board are also entitled to take account of the views of the Planning Department and other technical reports which were all in favour of the scheme and of the fact that the Corporation itself voted in favour of the scheme by a simple majority but not in sufficient numbers to pass the material contravention motion".

(ii) The following passage on page 29, under the heading "Traffic":-

"In terms of traffic it is acknowledged that the R336 is a major tourist and commuter route connecting the city with Connemara - it is particularly heavily trafficked in the morning and evening time. In order to address this problem the planning authority have proposed a new Western Distributor Road ... A newspaper extract from the Connaught Sentinel dated 14th April 1996 submitted by the Old Clybaun Road Residents Association quotes the city manager as stating that the section between Bishop O'Donnell Road and Cappagh Road should be operative within two years. At an oral hearing that I held earlier in the year, the Corporation engineer envisaged this road being open within approximately two years. While there is no doubt that the Kingston Road will continue to be a busy one, especially in relation to school needs, the Western Distributor Road should prove very beneficial in relieving traffic in the area."

(iii) The following passage on page 33, under the heading "Amenity Area":-

"It has been suggested that the entire site should be designated as an amenity space, but it is not in public ownership nor is there any indication that the Corporation wish to purchase it. As it is already zoned for residential purposes, such a suggestion appears to be untenable."

(l) At a meeting of the City Council held on 6th October, 1997, the elected members approved in principle the facilitation of the developer's development in accordance with the planning permission of 25th June, 1997 of the entire development site, including the area in issue, along the lines outlined in a letter dated 1st October, 1997 circulated by the city manager to the elected members. In that letter, the city manager referred to the powers of the Corporation under section 77(1) and (3) of the Act of 1963.

(m) Works have commenced on the development site in implementation of the planning permission of 25th June, 1997.

8. At the hearing of the application, I indicated that, having regard to the decision of the Supreme Court in McDaid -v- Judge Sheehy [1991] 1 I.R. 1, I would give my decision as to whether the Applicant has established that there are substantial grounds for contending that the decision of the Board to grant planning permission is invalid on a ground that does not raise a question of constitutional validity in this judgment and I deferred consideration of the constitutionality of section 14(8) of the Act of 1976 until after this judgment. That ruling was made notwithstanding that Mr. Macken, on behalf of the developer, objected on the ground that a piecemeal approach to the hearing of the application would be prejudicial to the developer who has already commenced the development. I will return to this topic later.

9. In the Applicant's Statement it is claimed that the planning permission dated 25th June, 1997 is void and should be quashed on forty-five grounds that do not raise any question of constitutional validity of a statutory provision. In the written submissions furnished on behalf of the Applicant these grounds have been helpfully subsumed under two broad headings: grounds which relate to the planning application; and grounds which relate to the conduct of the Board in processing and adjudicating on the appeal. On behalf of the Applicant, Mr. Connolly urged that, in considering whether the grounds advanced by the Applicant constitute substantial grounds, the Court should look at the Applicant's case from its best perspective.

10. It was contended that there was no valid application either before the Corporation or before the Board for the following reasons:-

(1) The developer did not have sufficient interest in the lands at any material time to support the application. In Frescati Estates -v- Walker [1975] I.R. 177, the Supreme Court held that an application for planning permission to be valid must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development. The application received by the Corporation on 15th July, 1996 was not made by such a person. The letter dated 2nd December, 1996 did not retrospectively validate the application.

(2) Article 18(1)(d) of the Local Government (Planning & Development) Regulations, 1994 (S.I. No. 86 of 1994) ("the 1994 Regulations") require that a planning application shall -

"give particulars of the interest in the land or structure held by the applicant and, if the applicant is not the owner, state the name and address of the owner."

11. The developer's application did not comply with this requirement and was sufficiently misleading to any potential objectors so as to prevent a proper public participation in the planning process. The misstatement in the application form of ownership was not trivial so as to justify the application of de minimis rule and the instant case is distinguishable on the facts from McCabe -v Harding Investments Limited [1984] I.L.R.M. 105.

(3) The development authorised by the Board constitutes a material contravention of the Corporation's development plan. Adopting the dictum of McCarthy J. in Attorney General (McGarry) -v- Sligo County Council [1991] 1 I.R. 99 at page 113, the development plan forms an environmental contract between the Corporation and the community, embodying a promise by the Corporation that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Corporation itself will not effect any development which contravenes the plan materially. Apart from the limitation on the power of the Corporation created by section 26(3) of the Act of 1963, the Corporation is also restricted by section 39(2) of the Act of 1963 which provides that the Corporation of a county borough shall not effect any development in such borough which contravenes materially the development plan. The purported consent given in the letter of 2nd December, 1996 was effectively an attempted improper circumvention of section 39(2) by the Corporation which, in effect, is implementing a joint development with the developer.

12. The infirmity in the application as presented to the Corporation, it was submitted, as it were, infected the entire process, including the appeal. The Board's jurisdiction conferred by section 26(5) of the Act of 1963 was to " determine the application as if it had been made to the Board in the first instance ". The application was flawed from the outset and was not and could not have been regularised by the consent dated 2nd December, 1996.

13. On behalf of the Board, Ms. Butler submitted that, in considering whether the grounds advanced by the Applicant are substantial grounds, the Court is entitled to take into account all of the evidence before the Court, including the affidavits filed by the developer and the Corporation and the documents, including maps, exhibited in those affidavits. While not suggesting that the Court should attempt to resolve conflicts of evidence, she did suggest that the Court cannot be blind to factual divergences.

14. As to the Applicant's contention that there was not a valid application before the Board, Ms. Butler submitted that, in reviewing the decision of the Board, the starting point for the Court should be the lodgement of the appeal and the documentation which was in existence at that time. Even if the proceedings before the Corporation on the application were flawed, and no such concession was being made by the Board, this was not a matter which concerned the Board, the Board being restricted to considering the proper planning and development of the area affected by the application. Even if the Corporation acted ultra vires, and no concession was being made that it did, its decision was nonetheless valid for the purposes of the appeal provisions of section 26(5) of the Act of 1963 and on this point Ms. Butler relied on the decision of Costello J., as he then was, in O'Keeffe -v- An Bord Pleanala [1993] 1 I.R. 39 and, in particular, the following passage from his judgment on the construction of section 26, which was not in issue on the appeal to the Supreme Court which is to be found at page 52 in the report:-

"Turning then to the facts of this case I observe that there has been ... a 'decision' made by the County Manager, that is, a decision on 19th November, 1987 under section 26 of the Act of 1963 to grant permission. I will assume that it was made ultra vires and that as a matter of law he should have carried out the direction given to him by the council's elected members. But I think I should construe the section as meaning that even though he may have acted ultra vires the decision is valid for the purposes of the appeal provisions of subsection (5) just as it is valid for the default provisions of subsection (4). The Oireachtas clearly intended that if a notice of appeal was served within the statutory period then the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal constraints, on the proceedings before the Board."

15. When one considers the state of the application at the date of the lodgement of the appeal, that is to say, as at 9th January, 1997, the letter of consent of the 2nd December, 1996 was in place and, accordingly, it was submitted, there was before the Board an application from a person who had in relation to the area in issue the approval of a person capable of asserting sufficient title to carry out the proposed development on the area in issue.

16. As to the Applicant's contention that the failure to comply with Article 18(1)(d) of the 1994 Regulations invalidated the application, it was submitted on behalf of the Board that the requirement in Article 18 to give particulars of the interest in land is directory and not mandatory. The underlying rationale of the decision of the Supreme Court in Frescati Estates -v- Walker supports this proposition, it was argued, and it is to be found in the following passage from the judgment of Henchy J. at page 190:-

"To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word 'applicant' in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development."

17. In the instant case, disclosure of the ownership of the Corporation of the area in issue was not material in that it was not necessary to enable the Corporation to decide whether the application was unnecessary or vexatious and non-disclosure would not involve an intrusion into property rights and, accordingly, disclosure was not mandatory. In any event, it was argued, if there was a breach of Article 18(1)(d) it was one to which the de minimis rule should be applied. Moreover, in considering whether the application of the de minimus rule is appropriate, the test as to whether the misstatement of ownership was trivial or otherwise does not turn on the fraction or percentage of the entire development site represented by the area in issue. The proper approach is to have regard to the nature and purpose of the requirement to state ownership, which is the imparting of information to the planning authority not to the public. In the instant case, in misstating the ownership on the form, no entitlement of the public was breached and the Corporation could not have been misled. The situation is analogous, it was suggested, to an error in the name of an Applicant for planning permission and it was urged that the Court should follow the decision of this Court (O'Hanlon J.) in Schwestermann -v- An Bord Pleanala [1994] 3 I.R. 437 and the authorities referred to by O'Hanlon J. in his judgment. Furthermore, it was submitted, no specific form of approval or consent is stipulated and, if consent exists, the application cannot be invalid by reason only of there being no reference to it on the fact of the application form.

18. Mr. Macken, on behalf of the developer, and Mr. Gallagher, on behalf of the Corporation, adopted Ms. Butler's submissions. Each contended that as a matter of fact there was a valid application before the Corporation at all material times and that it was an application which the Corporation was entitled to treat as valid and did treat as valid. A further answer to the impugning of the validity of the application was suggested. Article 29 of the 1994 Regulations requires a planning authority on receipt of a planning application to consider whether the application complies with the requirements of, inter alia, Article 18. In the instant case, the Corporation, in compliance with its obligation under Article 29, determined that the application complied with the relevant requirements. That determination was open to challenge, but was not challenged and cannot be challenged now.

19. In considering whether the Applicant has established that there are substantial grounds for contending that the decision of 25th June, 1997 is invalid I have had regard to the facts summarised above and, as I have already indicated, I have found it unnecessary to resolve the only conflict which emerged in relation to those facts. The obligation of the Board having received the developer's appeal was to "determine the application" in accordance with the provisions of section 26(5) of the Act of 1963. The nub of the Applicant's contention that the Board's decision was invalid on this aspect of her case is that, if the application was invalid, then the Board's decision could not have been valid. It has been established that for the application to be valid the consent of the owner of the area in issue to the proposed development was necessary. That owner had special characteristics in the context of the giving of the consent which was necessary. First, it was a local authority whose property rights are delimited by law and whose entitlement to deal, using that word in its broadest sense, with its property is circumscribed by statute. Secondly, it was a planning authority who, by virtue of the application of the Planning Acts to its own development plan, is constrained in the manner in which it can use or authorise the use of land in its functional area. I am satisfied that the ground of challenge to the Board's decision on the basis that the application was invalid is a substantial ground having regard to the peculiar facts of this case, being, in broad terms, the involvement of the Corporation as the owner of the area in issue. Moreover, I consider that the issues raised by the involvement of the Corporation as the owner of the area in issue in the developer's planning application are different in substance from the issues which arose in the authorities relied on by the Board, the developer and the Corporation. Accordingly, I propose granting the Applicant leave to apply for judicial review on the grounds which relate to the validity of the application, that is to say, grounds N(i) - (xxv) in the Statement.

20. The Applicant impugns the conduct of the appeal by the Board on two distinct bases.

21. The first basis is that the refusal of the Board to hold an oral hearing was unreasonable and, it being alleged that the Board failed to give reasons for its refusal to hold an oral hearing, that it must be presumed that the Board had no reasons for refusing and therefore acted ultra vires. In support of the latter proposition, the Applicant relied on the decision of this Court (Barron J.) in The State (Daly) -v- Minister for Agriculture [1987] I.R. 165. The effect of the Board not holding an oral hearing, it was asserted, was that the Board did not put itself in an informed position in relation to the various issues which arose on the appeal.

22. Section 12 of the Act of 1992 governs oral hearings on planning appeals. Subsection (1) provides that the Board shall have an absolute discretion to hold an oral hearing of any appeal. Subsection (2) provides that a party to an appeal may request an oral hearing of the appeal and stipulates how such a request is to be dealt with. Subsection (3) provides that where the Board is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, the Board shall serve notice of its decision on the person who requested the hearing and on each other party to the appeal. Ms. Butler pointed to the breadth of the discretion given to the Board under section 12 and submitted that the Court should be reluctant to interfere with an absolute discretion given by the Oireachtas to the Board. Moreover, she submitted that, in any event, the Applicant had not adduced evidence to support the contention that the Board acted unreasonably or that it failed to consider the question of holding an oral hearing. On behalf of the developer, Mr. Macken contended that the Applicant has no locus standi to impugn the Board's failure to hold an oral hearing as she was not a party to the appeal and she was not even an observer in relation to the appeal.

23. The correspondence between Messrs. Kennedy Fitzgerald and the Board on the question of an oral hearing, which I have outlined extensively above, was put in evidence by the Applicant. That correspondence speaks for itself and, in my view, not only does it not support the Applicant's assertion that the Board acted unreasonably in not holding an oral hearing, but, taken in conjunction with the rest of the evidence before the Court, it indicates that the Board acted reasonably in exercising the discretion conferred on it by section 12.

24. The second basis on which the Applicant alleges that the Board acted unreasonably is that in deciding to grant planning permission it had regard to matter which it should not have had regard to while, on the other hand, not having regard to matters it should have had regard to. This attack is founded on the three passages from the inspector's report which I have quoted above. In relation to the first passage, it was suggested that the fact that a simple majority of the members of the City Council voted in favour of the resolution on 9th December, 1996 ought not to have been taken into account because it carried insufficient weight for the purposes of deciding whether or not there should be a material departure from the development plan. The second passage, it was submitted, indicates that the Board relied on a newspaper report as to when traffic congestion would be effectively ameliorated, which was an insufficient foundation for a reliable conclusion. The third passage, it was suggested, reveals that the Board could not have properly taken account of the implications of the Corporation's ownership of the area in issue.

25. It was acknowledged on behalf of the Applicant that whether the decision of the Board was unreasonable falls to considered by reference to the principles outlined by the Supreme Court in O'Keeffe -v- An Bord Pleanala [1993] 1 I.R. 39. Having outlined the relevant principles in his judgment at pp. 70 and 71, Finlay C.J. went on to say:-

"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 authority 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.

I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision."

26. The inspector's report ran to forty-three pages. It summarised the submission made on behalf of the appellant, the developer, by his agents, McHugh Consultants. That submission was accompanied by a traffic study undertaken by Ove Arup and Partners in July 1996, the conclusions of which were summarised in the inspector's report. The inspector also summarised the conclusions of the various officers of the Corporation who had examined the application in connection with its determination at first instance - the roads engineer, the fire officer, the health officer and the sanitary services officer, and the planning officer - which, in broad terms, were favourable to the proposal. The inspector also recorded the views of two observers who were in favour of the proposed development. Even a superficial reading of the inspector's report without the backup documentation dispels the notion, based on three selective passages from the inspector's report, that the Board had no relevant material before it which would support its decision.

27. In my view, the Applicant has failed utterly to establish any substantial ground of challenge to the decision of the Board having regard to the conduct and the adjudication of the appeal by the Board and I refuse leave to apply for judicial review on grounds N(xxvi) to (xxxxv) in the Statement.

28. I propose now considering at what stage in these proceedings the Applicant's entitlement to pursue by way of judicial review its challenge on the ground that section 14(8) of the Act of 1976 is invalid having regard to the provisions of the Constitution should be determined. This point was debated before me and I heard submissions from Mr. McKechnie on behalf of Ireland and the Attorney General before I ruled that I would give my decision on whether the Applicant had established substantial "non-constitutional" grounds first. Having decided that the Applicant should have leave on some of the "non-constitutional" grounds advanced, I propose considering whether the Applicant's application for leave based on the challenge to section 14(8) of the Act of 1976 can be left over until the substantive application on those "non-constitutional" grounds has been determined. In my view, it cannot.

In KSK Enterprises Limited -v- An Bord Pleanala [1994] 2 I.R. 128, the Supreme Court examined subsection (3B) of section 82 of the Act of 1963 to ascertain its apparent legislative objectives and, having outlined the general scheme of the subsection, Finlay C.J. stated as follows at page 135:-

"From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision."

29. I think one must also assume from the provisions of subsection (3B) that it was the intention of the legislature that, in the event of an application for judicial review, the application would be brought to a conclusion as expeditiously as possible. The provision of subparagraph (i) of paragraph (b) of the subsection that the determination of the High Court on the application is to be final and that no appeal is to lie upon the decision of the High Court to the Supreme Court, except where the High Court certifies that there is a point of law of exceptional public importance desirable to be heard by the Supreme Court, supports this assumption. It is also clear from subparagraph (ii) of paragraph (b) that the legislature was cognisant of the fact that an application for judicial review could involve a question as to the validity of a law having regard to the provisions of the Constitution. While the legislature excluded a determination of the High Court on such a question from the ambit of subparagraph (i) of paragraph (b), it is noteworthy that the legislature in paragraph (a) of subsection (3B) in stipulating that the Court must be satisfied that the grounds relied on by the Applicant are substantial, did not distinguish between grounds in which the validity of a law having regard to the provisions of the Constitution is in issue and other grounds.

30. What is sometimes referred to as the principle of "self-restraint" with regard to judicial review, like the presumption of constitutionality enjoyed by post-constitutional Acts of the Oireachtas, " springs from, and is necessitated by, that respect which one great organ of the State owes to another " (per Finlay C.J. in McDaid -v- Sheehy quoting from Buckley & Others (Sinn Féin) -v- Attorney General [1950] I.R. 67 at p. 80). A finding that there are "substantial grounds" for contending that section 14(8) of the Act of 1976 is invalid having regard to the Constitution under section 82(3B) of the Act of 1963, if such were made, would be a pronouncement on the validity of section 14(8), albeit a tentative as opposed to a conclusive pronouncement. However, it is a pronouncement which the legislature in a post-constitutional Act of the Oireachtas has mandated the High Court to make. In the circumstances, the making of such a pronouncement could not be regarded as a manifestation of disrespect to the legislative organ of the State.

31. Having reflected on the matter, I have come to the conclusion that the Applicant should have been required to argue its case on its application for leave to challenge the validity of section 14(8) when the matter was originally before the Court. If the Applicant wishes to pursue that ground, ground N(xxxxvii) in the Statement, it must argue its case for leave at this stage. I note that the Applicant is not pursuing ground N(xxxxvi) - a challenge to the validity of section 12 of the Act of 1992.