High Court of Ireland Decisions

1. This is an application for leave to apply by way of an application for Judicial Review for Orders in respect of a Notification of grant of Planning Permission in respect of an application for a proposed development comprising a Quay and Hard-Stand at Tom Roe's Point. The particular part of the notification of the grant of Planning Permission to which the application relates is Condition No. 19 thereof.

2. The Applicant claims that the purported determination of the application was bad and it seeks a declaration to that effect and it claims to have the said determination set aside and that the Respondents do be ordered to re-adjudicate on the application in continuance. The grounds upon which the said relief is sought are that the Respondents failed to observe the principles of constitutional and natural justice in their adjudication of the application by:-

3. The Applicants are a harbour authority for Drogheda Port. As congestion had arisen in Drogheda Port, the Applicants were desirous of developing the port and proposed the development of a quay, hard-standing and ancillary works at Tom Roe's Point. On the 1st July, 1996, the Applicants lodged an application for planning permission (Reference No. 96463) with the First named Respondents. The First named Respondents requested further information in respect of certain proposed linked roads for the proposed development and on the 9th August, 1996 this information was furnished. Further information was sought in relation to tonnage entering the port and the route to be taken by heavy vehicular traffic serving the port. An environmental impact study was lodged. Communications took place between the appropriate officers of each of the two Respondents and a representation was received from the Applicants requesting that an early decision be reached on the planning application. To expedite a decision, estimates were made by the two Respondents of the costs of strengthening and improving the roadway in the functional area of each Respondent. The Affidavits lodged disclose that appropriate efforts were made by the Respondents to reach on an appropriate figure for the contribution to be inserted in Condition 19. A variety of factors were taken into account in reaching this figure. The notification of the decision to grant planning permission for the development, subject to the conditions set out in the schedule, numbered 1-19 inclusive, issued on the 20th November, 1996.

4. The terms of Condition 19 are as follows:-

5. I accordingly approach the Applicants' submissions on that basis.

6. This submission presupposes that there is an obligation upon the planning authority to consult with the Applicant and engage in negotiations and discussions with it prior to fixing the figure which is to be inserted in the condition. I find no authority for such a submission in Section 26 of the Local Government (Planning and Development) Act, 1963 or elsewhere. It appears to me that the Applicants' submission is based upon a misconstruction of that part of the judgment of Mr. Justice Keane in Bord na Mona -v- An Bord Pleanala at page 210 in which Mr. Justice Keane refers to conditions in a permission "which require the agreement of certain matters between the planning authority and the applicant". In my view, the learned Judge is doing no more than referring to circumstances in which a condition may attach to a permission providing that the amount of the contribution is "to be agreed". In default of agreement an application may be made to An Bord Pleanala for resolution of the difference. Nothing in this judgment, in my view, is authority for the proposition that negotiation between the parties is required before the planning authority may fix an amount in a condition.

7. In my view, there is very little doubt that the carrying out of work "strengthening/improving" to the satisfaction of the planning authority, the roads named in Condition 19, would necessitate the carrying out of significant roadworks in the functional area of Louth County Council. The Applicants, a statutory body, are not possessed of this power. It is the Applicants wish to argue that in these circumstances for the Respondents to offer the Applicants such an option when they knew or must be deemed to have known that this option was not available to them taints the entire of the condition and renders it null and void. No authority is cited for this proposition, however, that the submission could not be regarded as trivial or tenuous and on the other hand could be regarded as significant, reasonable, arguable and weighty. In these circumstances, I am of the opinion that the Applicants have discharged the onus of proof and that leave should be given in regard to this submission.

8. Accordingly, I am satisfied that the Applicants in this case have satisfied the Court that there are substantial grounds for granting it leave to seek relief by way of Judicial Review on the one ground, namely, Ground H in the Notice of Grounds, that is to say "the condition erroneously and illegally seeks as an alternative to impose a road function on a harbour authority which is manifestly, ultra vires, the power of the harbour authority" and I accordingly grant the Applicants the relief sought at paragraph D7, that is to say, leave to apply to the Court for an Order of Mandamus directing the Respondents to re-adjudicate the application in continuance".