High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Certiorari to quash a decision of the first named Respondent, An Bord Pleanala ("the Board") made on the 25th day of June, 1997 to grant planning permission to the second named Respondent ("the Developer"), together with certain ancillary Orders. Leave to apply for Judicial Review was granted pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963 (as amended) by Laffoy J., who gave Judgment on the 10th day of December, 1997. The Order granting leave was made on the 19th day of December, 1997. The grounds upon which the Applicant was given leave were those set out at N(i) to (xxv) in the originating Statement, to which I shall refer later.

2. The chronology of events which led up to the decision of the Board of the 25th June, 1997 was succinctly and helpfully summarised by Laffoy J. in her Judgment of the 10th December, 1997 and I can do no better than to rely in the main on that Judgment in setting out the factual background to this application. However, during the period which elapsed between that Judgment and the hearing of this matter before me in July, 1998, a number of further Affidavits were filed on behalf both of the Applicant and of the Respondents, with the result that some additional factual evidence was available to this Court at the hearing of the Judicial Review application. I would summarise the factual background, therefore, as follows:-

3. Senior Counsel for the Applicant, Dr Forde, submitted that the planning application made by the Developer on 12th June, 1996 was fundamentally flawed from the very outset in that the Developer stated on the planning application form simply that he was the "owner" of the land in question. No reference whatever was made on the form to the fact part of the land was owned by Galway Corporation, nor was there any indication as to whether the Corporation was consenting to a planning application being made in respect of its land. The required content of a planning application is set out in Article 18 of the Local Government (Planning and Development) Regulations 1994 (S.I. No 86 of 1994). Under Article 18(1)(d) it is provided 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." Counsel submitted that this regulation is mandatory rather than directory in nature and he referred to Monaghan U.D.C. -v- Alf-a-Bet [1980] ILRM 64.

4. Dr Forde also referred to the decision of the Supreme Court in Frescati Estates Limited -v- Walker [1975] IR 177, and in particular to the passage in the Judgment of Henchy J. (at page 190) where the learned Judge stated ".... I consider that an application for development 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, or so much of the proposed development as relates to the property in question" . Counsel submitted that, on its face, the Developer's application was by this standard invalid. No indication that the Corporation was consenting to the application appeared on the Planning File (the only documentation open to the public) until 11th June, 1997, when Mr O'Neill's letter dated 2nd December, 1996 was placed on the file. This post-dated the Corporation's decision on the application and only shortly pre-dated the Board's decision of the 25th June, 1997.

5. Dr Forde stressed the importance of public knowledge of, and participation in, the planning process, referring to the well know dictum of the late learned McCarthy J. in Attorney General (McGarry) -v- Sligo County Council [1991] 1 IR 99 at 113 where he described a development plan as being "an environmental contract between the Planning Authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objective stated in the plan and further, that the Council itself shall not affect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself." The lack of information on the planning file meant that both the public at large and at least some of the City Councillors had been unaware that Corporation land was included in the proposed development. Had they been fully appraised of this he argued that in all likelihood there would have been a far greater public outcry, the Corporation would have voted overwhelmingly against the proposed development, and the Board would have refused permission or would have imposed other conditions in its grant.

6. He also argued that in order to consent to a planning application affecting its own land, the Corporation would have to accept, or at least envisage, the possible success of the application. This they could not properly do, since the proposed application was a material contravention of the 1991 Development Plan. Under Section 39(2) of the Act of 1963 the Corporation was forbidden by statute from effecting any development which materially contravened the Development Plan. Since to consent to the application amounted, in effect, to consenting to the carrying out of the proposed development, it was ultra vires the Corporation to consent to the Developer's application insofar as it affected Corporation land.

7. Dr Forde also submitted that because the proposed development was a material contravention of the Development Plan any consent to the application would require the agreement of the elected members of the Corporation. Even the consent of the Corporation's Chief Executive would not suffice. Since the plan was an environmental social contract with the community, the elected members would be acting in breach of that contract if they purported to consent to the planning application being made.

8. Counsel for the Applicant was extremely critical of the course of conduct of the Corporation officials, suggesting that they were conniving with the Developer in deliberately concealing from the elected members of the Corporation and from the public the inclusion of Corporation land in the development. He also submitted that it was unlikely that either Mr McCarthy or Mr O'Neill had the City Manager's authority to consent on behalf of the Corporation to the Developer's application and that such lack of authority would in itself vitiate the consent.

9. Counsel for Corporation, Mr Gallagher, supported by Counsel for the Developer and for the Board, not unnaturally objected strongly to these allegations. I do not find it necessary to deal with the details of this argument. It is sufficient to say that whatever criticism one might make of the management of the Planning File in this case, there is no evidence whatever of any wrongful connivance between the Developer, Mr Joyce, or his agents and the officials of Galway Corporation. Nor is there any evidence that either Mr McCarthy or Mr O'Neill lacked proper authority for their actions. On the contrary the vast majority of the correspondence which referred inter alia to the Corporation lands which was carried on by members of the Applicant's family from October to December of 1996 was directed to Mr Gavin, the City Manager. On 4th December, 1996 Mr Gavin wrote as follows to Mrs O'Murchú, the Applicant's daughter, "I refer to your letter of 27/11/96 in connection with the above proposal, and wish to confirm that Galway Corporation has consented to the submission of an application by Mr Joyce in respect of a site, part of which comprises land owned by Galway Corporation. This does not confirm any legal right or title to the lands in question and in the event of Galway Corporation disposing of these lands, the disposal will be subject to the approval of the elected members of Galway City Council and to other statutory and legal procedures." In the absence of any evidence to the contrary, and with this evidence before me, I must accept that Mr McCarthy and Mr O'Neill were acting with proper authority.

10. In any event, an argument that the alleged lack of authority vitiated the Corporation's consent to the Developer's application does not form part of the grounds for Judicial Review permitted by the Order of Laffoy J. and therefore cannot be considered by this Court.

11. Senior Counsel for An Bord Pleanala, Mr Collins, emphasised that the Order sought to be quashed in these Judicial Review proceedings was the Order of the Board. It was for the Applicant to show that the Order of the Board was null and void, not that there were infirmities in the planning procedures of the Corporation. The Corporation, as Planning Authority, had made a decision to refuse planning permission and it was that decision which gave jurisdiction to the Board to adjudicate on the Appeal. Prior infirmities - if such there were - in the procedures of the Corporation were irrelevant to the jurisdiction of the Board and the validity of its decision. He relied on the Judgment of Costello J. (as he then was) in the High Court in O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39 at page 52. In that case the County Manager had granted planning permission for a radio mast contrary to the direction of the elected members of the County Council. The Applicant, a local resident, appealed to An Bord Pleanala, who also granted permission. In Judicial Review proceedings the Applicant claimed that the Board lacked jurisdiction because the decision of the County Manager was itself ultra vires . The relevant section of Costello J.'s Judgment was not appealed and was not dealt with in the subsequent Judgment of the Supreme Court and therefore, stands as having authority.

12. The learned Judge quoted Section 26(5) of the Act of 1963 and then went on to state:

13. Mr Collins, in reliance on this Judgment, submitted that both any defect in the original application and any defect in the procedures of the Corporation were irrelevant. The decision of the Corporation made on the 10th December, 1996 to refuse planning permission gave jurisdiction to the Board to adjudicate on the Developer's appeal. The Board could not go behind the decision of the Planning Authority even to consider the validity of the original application. The Board properly considered the matter in the light of planning and development criteria and its decision on these criteria was not challenged on grounds of unreasonableness (see Judgment of Supreme Court in O'Keeffe -v- An Bord Pleanala ). The Board's decision was therefore valid.

14. Mr Collins also submitted that Counsel for the Applicant was incorrect in arguing that the Corporation's purported consent to a planning application in respect of its own land was tantamount, or virtually tantamount, to accepting that the permission should be granted, and that because the proposed development was a material contravention the consent of the Corporation was ultra vires . He argued that there was a very clear distinction between consent to the making of a planning application and an implied agreement to the granting of the permission. It was perfectly possible that a land owner might consent to his neighbour making an application for planning permission to develop, say, a group of town houses and apartments on their joint lands but subsequently refuse to sell his land to his neighbour for the purpose of carrying out the development - perhaps because the price was not right. Consent to an application did not imply consent to the carrying out of the development. This was clearly borne out by the facts in this case; the Corporation consented to the application but went on to refuse planning permission.

15. Thirdly, Mr Collins submitted that the Developer's original application showed substantial compliance with the regulations and that on the authorities the requirement to state ownership of or interest in the land was directory rather than mandatory. He referred to a number of cases where quite substantial mis-statements as to the title to the relevant land had not been held to render an application for planning permission or the granting of planning permission invalid - e.g. State (Toft) -v- Galway Corporation [1981] ILRM 439, Marry -v- Connaughton (unreported) 25th January, 1984, McCabe -v- Harding [1984] ILRM 105, Grange Developments -v- Dublin County Council [1987] ILRM 753, Molloy -v- Dublin County Council [1990] 1IR 96.

16. He argued that the Frescati case must be understood in the context of its own facts - the Respondent, Mrs Walker, had no connection whatsoever with the lands in question, would not have been able to carry out any development on them, and had applied for permission purely to prevent the development desired by owners of the land. Henchy J. in his Judgment was concerned to prevent vexatious applications by complete outsiders. This was clear from the paragraph prior to that quoted by Dr Forde (at page 190):

17. With regard to Monaghan U.D.C. -v- Alf-a-Bet, he submitted that this case could be clearly distinguished on the facts. A change of use from a drapery shop to a betting shop and amusement arcade would have a clear and considerable impact on local residents and the townspeople in general; a fairly minor mis-description of ownership in a planning application (where in fact the map showed the correct situation) was not at all comparable in its effect.

18. It also could not be said that any non-compliance with Article 18(1)(d) of the 1994 regulations materially affected the proceedings before An Bord Pleanala or the right of the public to participate in those proceedings. By the time the matter was appealed to the Board it was clear both that land owned by the Corporation was involved and that the Corporation had consented to its inclusion in the application.

19. Senior Counsel for the Corporation, Mr Gallagher, adopted the submission of Mr Collins. He re-emphasised that the onus lay on the Applicant to establish that the decision of An Bord Pleanala was void. He also pointed out that the granting of planning permission did not of itself enable a development to be carried out - see Section 26(11) of the Act of 1963. In some cases licensing conditions would have to be fulfilled, in others questions of ancient lights or nuisance might arise. In the instant case agreement would have to be reached between the Developer and the Corporation in regard to any conveyance or use of the Corporation's land.

20. With regard to the Developer's application he submitted that it must be looked at as a whole, as it consisted of all the documents required by Articles 18, 19 and 23 of the 1994 Regulations. The fact that Coporation land was involved was clear from the map. He acknowledged that the Developer's statement on the application form that he was "owner" of the lands was insufficient, but submitted that the Court should bear in mind the application as a whole, the area of the Corporation lands in proportion to the whole development and the fact that the location of the Corporation's lands meant that they were not in themselves useful for other than road-widening purposes. The "de minimis" rule should be applied to the mis-description on the form.

21. Mr Gallagher also handed into the Court a number of letters and documents which had been on the Planning File which was available for inspection by the public and which was also available to An Bord Pleanala. Included in these documents were a number of letters from the Applicant's daughter and other members of her family, together with submissions from Residents' Associations and other objectors to the proposed development. These documents demonstrated that at least a fair number of members of the public in the immediate locality were aware that the proposed development included land owned by the Corporation. This documentation covered the period October to December, 1996. It included a letter from the Applicant's daughter dated 27th November, 1996 addressed to the City Manager, together with the City Manager's reply dated 4th December 1996, which I have already quoted above. Neither of these last letters were, in fact, placed on the Planning File. The documents also included two submissions to An Bord Pleanala, one from the O'Murchú family and one from the Old Clybaun Road Residents' Association, both of which raise objections to the use of "Corporation land obtained by CPO in 1982".

22. Mr Gallagher also submitted that the actual development work which was proposed to be carried out on the Corporation's land (road widening, tree planting, car parking) would not in fact be a material contravention of the 1991 plan.

23. Senior Counsel for the Developer, Mr Macken, adopted the submissions of Mr Collins and Mr Gallagher. He submitted that, in the terms of the Frescati case and the other authorities there was sufficient interest on the part of the Developer and sufficient consent on the part of the Corporation. He agreed with Mr Collins in making a clear distinction between a planning application and the granting of permission or the carrying out of the development. Section 39(2) of the Act of 1963 provided that the Corporation should not "effect" a development which materially contravened the development plan. Mr Macken argued that the mere consent to inclusion of land in an application was not "effecting" a development. In the McGarry -v- Sligo County Council case the County Council was actually carrying out the impugned development. There was no illegality in the action of the Corporation in the instant case. Mr Macken also submitted that grounds (v) to (ix) inclusive of the application sought to cast doubt on the validity of the consent given by Galway Corporation to the inclusion of the lands in the application by the Developer for planning permission. He pointed out that no relief was sought in the proceedings against Galway Corporation, that no order was sought in the instant proceedings in respect of the consent actually given and nor had any other proceedings been commenced seeking to quash the consent given. In the circumstances he submitted that the Applicant was not entitled to seek to cast doubt on the validity of the consent. In the absence of any proceedings seeking to quash the consent of the Corporation or any order of the Court quashing the consent, An Bord Pleanala was entitled to take the consent as having been validly given for the purpose of determining the appeal by Patrick Joyce against the decision of Galway Corporation to refuse permission for the proposed development. Article 29 of the 1994 regulations specifically placed it within the remit and jurisdiction of a planning authority to determine whether an application for planning permission was valid and in compliance with the regulations. In the absence of any legal challenge being made to a decision of the Planning Authority in this regard or any objection being made to it as to the validity of an application under appeal, An Bord Pleanala was entitled to and indeed obliged to treat the application as having been validly made.

24. In reply on behalf of the Applicant Mr Comerford accepted that An Bord Pleanala was bound by the Act of 1963 (Section 26(5)(b)) to "determine the application as if it had been made to the Board in the first place". However, the same subsection specifically provided that "the provisions of subsections (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority". Section 26(1) provides that "where - (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and (b) any requirement relating to the application of or made under such regulations are complied with,

25. The regulations in question in the instant case were the 1994 Regulations. The Developer's application of 12th July, 1996 was manifestly in breach of Article 18(1)(d) of those regulations, and it was not open to An Bord Pleanala to ignore the consequent invalidity of the application. The regulations, he submitted, were mandatory in nature; in this context he referred to Ms Yvonne Scannell's work "Environmental and Planning Law in Ireland" at page 165 where the author states:

26. Mr Comerford adopted the opinion of the author and submitted that, due to the invalidity of the original application, the decision of the Corporation to refuse planning permission could not give jurisdiction to An Bord Pleanala to adjudicate on the appeal.

27. The relief which is sought by the Applicant in these proceedings is the quashing of the decision made by An Bord Pleanala on the 25th June, 1997. No relief is sought against either Galway Corporation or the Developer, Patrick Joyce.

28. The jurisdiction of An Bord Pleanala is governed by statute. As has already bee pointed out Section 26(5) of the Act of 1963 provides that the Board

29. Section 26(1), leaving aside the provisions already quoted in regard to the actual application, provides that in

30. Subsection (2) deals with the type of conditions which may be attached to the planning permission.

31. It is well established that this Court may not interfere with the decisions of the Board with regard to proper planning and development criteria unless the Applicant establishes that the Board had no relevant material before it to support its decision (see O'Keeffe -v- An Bord Pleanala [1993] 1IR 39). No such suggestion is made by the Applicant in these proceedings.

32. The grounds upon which the Applicant relies refer, in summary, to alleged defects in the Developer's original application for planning permission and to alleged defects in the planning procedure of the Corporation in this case.

33. I will deal first with the question of infirmities in the planning procedure of the Corporation. This matter has been dealt with in the Judgment of Costello J. in The High Court in O'Keeffe -v- An Bord Pleanala . The relevant passage of the learned Costello J.'s Judgment has already been quoted above. The conclusion which he reached was that "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 had happened before the Planning Authority." This, it appears to me, is an authoritative statement of the law and I accordingly accept it. Therefore, I must hold that the various infirmities which affected the Corporation's planning procedure in this case are irrelevant to the validity or otherwise of the Board's decision of the 25th June, 1997.

34. I do not, however, feel that the procedure adopted by the Corporation should pass entirely without comment. I have already accepted that there is no evidence of either wrongful connivance or of officials acting without proper authority. Nevertheless, the management of this application left much to be desired. When the original application was received by the Corporation steps should have been taken under Article 29 of the 1994 Regulations to amend and clarify the information with regard to ownership of the property involved. I accept on the evidence of Mr McCarthy that the consent of the Corporation to the planning application existed from the beginning, but that fact should have been made clear on the Planning File. At the very least Mr O'Neill's letter of 2nd December, 1996 should have immediately been placed on the Planning File; to leave it until 11th June, 1997 to place this crucial letter on the Planning File was most undesirable. The situation with regard to the land owned by the Corporation should have been made crystal clear to all elected members of the City Council prior to the vote on the 9th December, 1996. I accept that material existed on the Planning File which made it clear that some of the land was in the ownership of the Corporation, but the lack of clarity about the situation was bound to create an impression that the planning officials were less than open with both the elected members and the general public. As I have said however, the jurisdiction of An Bord Pleanala stems not from the procedure but from the actual decision of the Corporation and the refusal of planning permission on the 10th December, 1996.

35. There remains the question of the validity of the Developer's original application. While the Judgment of Costello J. in the O'Keeffe case makes it clear that it is the decision of the Planning Authority that founds the jurisdiction of An Bord Pleanala, no question of the validity of the original application arose in that case, and I would not interpret the Judgment as meaning (as suggested by Mr Collins) that An Bord Pleanala could simply ignore a situation where the original planning application was clearly invalid. I accept that the primary duty of vetting a planning application and ensuring that it is in accordance with the relevant regulations lies with the Planning Authority but one must ask whether An Bord Pleanala would have jurisdiction to adjudicate on an appeal where the application on its face was one which would be considered invalid under the criteria set out by the Supreme Court in the Frescati case? Surely the answer must be no, particularly bearing in mind the cross reference from Section 26(5) to Section 26 (1) of the Act of 1963. It seems to me, therefore, that I should consider the validity or otherwise of the Developer's original planning application. This may be looked at firstly in the context of the criteria established in Frescati -v- Walker and secondly in the context of the 1994 Regulations.

36. The Judgment of the Supreme Court in the Frescati case should, in common with other Judgments, be looked at in the context of its own facts. This was recently stressed by Keane J. in the Supreme Court of the case of Keane -v- An Bord Pleanala and Ors (unreported 22nd April, 1998) - the Loran C mast case. The learned Keane J. at page 9 of his Judgment stated:

37. On the facts of the present case I consider that the Developer had, within the parameters of Frescati, sufficient interest in the property to make a valid application. Given that I accept the evidence of Mr McCarthy, I consider that he also had sufficient consent. The application therefore, is not rendered invalid under the criteria set out in the Frescati Judgment.

38. I now turn to the question of the 1994 Regulations. Counsel for the Applicants submits that these regulations are mandatory and it is common case that the Developer is mis-described as "owner" in the application form. In this context I am referred to the opinion of Ms Scannell in her work on environmental and planning law. Counsel for the various Respondents submit that the regulations are directory rather than mandatory and that other documents included in the application clarify the situation. Mr Collins in particular referred to a considerable number of cases where errors as to title in the planning application were held not to invalidate either the application or the subsequent planning permission.

39. It must be acknowledged that at a later stage in Ms Scannell's discussion of the question she gives example of case law which would indicate that the position is not entirely clear. While in State (Finglas Industrial Estates) -v- Dublin County Council (Supreme Court unreported 17th February, 1983) the Supreme Court stated obiter that an unincorporated company could not validly submit a planning application, in Inver Resources Limited -v- Limerick Corporation [1987] IR159 Barron J. in the High Court upheld an application made by (and the permission granted to) an unincorporated company, taking the view that the Corporation knew that it was dealing with an application from a real person and that no harm had been done in the circumstances of that case. In State (NCE) -v- Dublin County Council (Supreme Court unreported 14th May, 1980) the Supreme Court held that an application by a company using the name of an associate company was invalid when it was a ruse to mislead the public. But in Thomas McDonagh -v- Galway Corporation (Supreme Court unreported 17th May, 1993) the Supreme Court excused an unintentional mis-statement attributing ownership to an associate company of the real owner since it did not have the effect of misleading anyone and could not possibly have been in any way to the disadvantage of either the Planning Authority or the public.

40. What appears to emerge from these cases - and indeed from the other cases quoted by Mr Collins - is that minor infringements of the regulations will not be fatal to the validity of the application provided the error does not deliberately mislead the public or work to the disadvantage of the Planning Authority or the public.

41. One of the most relevant cases is that of McCabe -v- Harding Investments Limited [1984] ILRM 105. In that case the developer had not adhered to the terms of the original planning permission for an office block. He then submitted a fresh planning application seeking permission to authorise what was being constructed. Such permission was granted, and was later upheld by An Bord Pleanala. In the application the developer had failed to comply with the requirements of the 1977 Planning Regulations in that it incorrectly stated its title to the site as being freehold. The Plaintiff sought a declaration that the purported grant of planning permission was null and void. The Supreme Court held that even if the description given of the Defendant's title lacked accuracy or particularity it was so insignificant and trivial as to be ignored. In his Judgment (at page 109) O'Higgins C.J. considered the planning application form (which was similar to the form in the instant case insofar as relevant) and deduced that "it would appear that what the Planning Authority seek is a general idea of the Applicant's interest or estate in the lands and not a precise legal definition of what it is. The concern of the Planning Authority is that the Applicant should have an interest in the lands sought to be developed."

42. Henchy J. in his Judgment was critical of the developers but concluded that the mis-statement in the application must be over-looked. He stated (at page 112):

43. In the instant case the description "owner" was incorrect in that it did not cover all of the lands involved. However, the accompanying map somewhat clarified the situation. There is no evidence that the Developer himself wished deliberately to mislead the public, and the Corporation were at all times aware of the true situation. By the time the appeal documentation reached An Bord Pleanala the inclusion of the Corporation land was clear and the consent of the Corporation was available on the Planning File. On the authorities I consider that exact compliance with Article 18(1)(d) is not required in all cases, and I do not consider that the decision of An Bord Pleanala is rendered invalid by the mis-description contained in the planning application form.

44. In addition, the remedy of Certiorari is discretionary. As was pointed out by the learned Henchy J. in the McCabe case, it would be open to the developer, if the Applicant succeeds in her proceedings, to lodge a fresh application, and there is no reason to suppose that, even if he failed at the Planning Authority stage, he would not again succeed on appeal to An Bord Pleanala. This would involve very considerable delay and expense, without any ultimate gain to the Applicant and her fellow objectors. Thus considerations of discretion would also weigh against a decision to quash the determination of An Bord Pleanala made on the 25th June, 1997.

45. I would, therefore, refuse the Applicant the relief sought.