High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant, which is a company limited by guarantee, seeks a number of Orders against the first named Respondent (the County Council) as follows:-

2. As far as number 8 above is concerned, this presumably refers to an application for planning permission for the extraction of sand and gravel which has been made by the Notice Party, Messrs Roadstone (Dublin) Limited and which is at the present being considered by the first named Respondent.

3. For convenience I shall refer to the first named Respondent as "the County Council" and the second named Respondent as "the Minister": I shall refer to the Notice Party as "Roadstone".

4. In the course of the proceedings before this Court it became clear that the main relief sought by the Applicant was the first Order listed above - an Order of Certiorari quashing the decision of the County Council on the 9th September, 1996 to adopt a Development Plan for the Blessington area (the 'Blessington Plan'). A number of grounds were put forward for the claim that the decision of the County Council to adopt a Development for the Blessington area. A number of grounds were put forward for the claim that the decision of the County Council to adopt the Blessington Plan was invalid. These included the fact that the plan was adopted at a time when the appropriate period for reviewing the County Wicklow Development Plan had expired and had not been extended by the Minister, and that therefore the adoption of the Plan was ultra vires the County Council. It was also claimed that the County Council should have given public notice of its intention to apply to the Minister for an extension of the period for reviewing the Plan. A further ground was that the Minister had no jurisdiction retrospectively to validate an ultra vires decision of the County Council or to extend the appropriate period for the review of the Development Plan on more than one occasion. The Applicant also impugns the circumstances in which the Blessington Plan was adopted by the County Council, stating that this was done in breach of the County Council's own standing orders.

5. Both the County Council and the Minister strenuously opposed the claim that the adoption of the Blessington Plan was in any way invalid or ultra vires the County Council.

6. The Applicant's proceedings were issued on the 7th March, 1996 and the Order giving the Applicant leave to seek Judicial Review was made by Kelly J. on the 10th March, 1996. On the 16th June, 1997 Messrs Roadstone (Dublin) Limited were on their own application joined as Notice Party in the proceedings. In addition to their other stated grounds for opposing the Order sought by the Applicant (to which I shall refer later) the Notice Party strongly challenges the locus standi of the Applicant in bringing these proceedings.

7. Since a large number of the issues raised and argued before this Court turn on the interpretation of Sections 19, 20, 21 and 21a of the Local Government (Planning and Development) Act, 1963 (as amended), it will be helpful at this point to refer to the relevant portions of these sections, which provide as follows:-

8. Apart from the statements grounding and opposing the application the Court had opened to it a number of Affidavits as follows:-

9. Mr Colm Coogan, who had sworn the original Affidavit on behalf of the Applicant, was cross-examined on his Affidavit. Much of the cross-examination dealt with the establishment of the Blessington Heritage Trust Company and the identity of its Directors and membership. Both Mr Colm Coogan and Mr Frank Corcoran are Directors of the company. Mr Coogan denied that the company had primarily been incorporated in order to embark upon a prior legal action under Section 27 of the Local Government (Planning and Development) Act, 1976 against the Notice Party. He stated that the company had held a board meeting on the 6th March, 1997 and had decided to take the present Judicial Review proceedings. This decision was taken on account of their extreme concern at the action of the County Council in amending its original draft plan for Blessington by re-zoning part of the Glen Ding Wood area from forestry/amenity purposes to permit quarrying to be carried out in that area. The members of the company were aware that the Notice Party had applied for permission to extract sand and gravel in part of the area of Glen Ding Wood.

10. From the Affidavit, oral and documentary evidence before the Court the factual background to the proceedings appears to be as follows. Wicklow County Council made a Development Plan for County Wicklow as a whole, which was adopted on the 6th March, 1989. It is not clear from the evidence before me whether this was an original plan made pursuant to Section 19 of the 1963 Act, or whether it was, as seems probable, a variation on a previous plan or alternatively a new plan. Be that as it may, the March 1989 plan was due to be reviewed pursuant to Section 20 of the 1963 Act by the 6th March 1994. The County Council applied for extensions of this review period and the Minister extended it by Order firstly to the 6th March, 1995 and subsequently to the 6th September, 1996. It appeared that the review would not be completed by September, 1996 and at a meeting held on 8th July, 1996 the County Council approved of a further application to the Minister to extend the review period to the 6th September, 1999. On 30th August, 1996 the County Manager ordered that a request for this extension be issued and on the same day the County Secretary wrote to the Secretary of the Department of the Environment seeking an extension as follows:-

11. Somewhat peculiarly the County Secretary's letter does not mention the plan for Blessington among the other separate plans which he mentions. However, if one looks at the County Manager's order GP/350/96 which is headed "Review of County Development Plan", the County Manager states "the County Development Plan was made on 6th March, 1989 and was therefore due for review, in accordance with the provisions of Section 20 of the Local Government (Planning and Development) Act, 19963 by the 6th March, 1994. The members of the Council agreed to make a comprehensive view of the plan, and this, combined with the making of a Development Plan for Wicklow environs and Blessington together with separate plans for Rathdown, Greystones/Delgany and Rathdrum, has resulted in the review being delayed. Ministerial approval was received to extend the period within which the review must be completed to 6th September, 1996. At its meeting held on the 8th July, 1996 the Council approved the making of a further application to the Minister to extend the period within which the review must be completed to 6th September, 1999".

12. The letter dated 9th August, 1996 from the Secretary of the Department is not exhibited, but one must infer that it contained some reference to the fact that the then extended period of review would expire on the 6th September, 1996. Not until 19th December, 1996 did an order issue from the Minister in the following terms:-

13. Rather than comply with the request of the County Council, the Minister extended the period only until the 31st December, 1997. Since these proceedings were heard before me prior to that date, I have no knowledge of the present position with regard to any further extension of the period.

14. As can be seen from the correspondence quoted above, the comprehensive review being carried out by the County Council included the making of a number of "separate plans" for specific areas. One of these was the Blessington area. A draft plan for this area was prepared and was adopted by the County Council at its meeting on the 17th January, 1994. This draft plan was, in accordance with the terms of the statute, put on public display for a period of three months. Under the draft plan the entire Glen Ding Wood area, including the area which is in issue in these proceedings, was zoned for forestry and leisure, recreation and amenity, the zoning objective being stated to be "to preserve the amenities and character of Glen Ding Wood". Mr Corcoran, in his Affidavit on behalf of the Applicant, states that this zoning had wide support among the local community and that the only submission made in opposition to the zoning was made by the Notice Party Messrs Roadstone. This evidence is unchallenged. From the minutes of the County Council meeting of 14th October, 1996 it appears that in fact Roadstone's submission in regard to the zoning of the Glen Ding Wood area was requested by the Senior Executive Planner, Mr Frank O'Gallachoir (or by his officials). It was not received during the statutory three month period but was received subsequently and resulted in the re-opening of consideration of the zoning of the Glen Ding Wood area.

15. Roadstone had purchased lands at Deerpark, Blessington (which included part of Glen Ding Wood) from the Department of Energy in January, 1992 for a sum of £1.25 million. They intended to use these lands for the extraction of sand and gravel, an essential part of their business. Roadstone state that quarrying had been carried out on part of these lands by the previous owner. Roadstone embarked on quarrying in the Glen Ding area. On the 9th March, 1994 Wicklow County Council, as the planning authority, issued proceedings under Section 27 of the Local Government (Planning and Development) Act, 1976 seeking an Order to prevent what the County Council characterised as an unauthorised development. These proceedings were listed and adjourned from time to time over quite a long period. The Applicant in the present proceedings and its members took an intense interest in these proceedings on account of their relevance to the preservation of Glen Ding Wood and they attended the Court hearings. Members of the Trust had, in fact, been instrumental in drawing the County Council's attention to the Notice Party's quarrying in the Glen Ding area. The Applicant company then issued its own Section 27 proceedings. It appears that this was more or less at the instigation of the trial Judge in the County Council proceedings, although this aspect of the matter is not particularly relevant to the present proceedings. Both sets of proceedings were eventually settled on terms whereby Roadstone provided an undertaking to the Court not to extract sand and gravel from the lands pending a submission of an application for planning permission within four months of the adoption of a then proposed Development Plan for Blessington and successfully obtaining such permission. Roadstone have since abided by these undertakings. The date of the settlement is not stated in any of the Affidavits filed in the present proceedings but it seems to have been some time in late 1994 or early in 1995. At any rate, the settlement, as far as the Applicant in the present proceedings was concerned, was entered into in the context of the draft plan for Blessington adopted by the County Council on the 17th January, 1994 under which the whole of Glen Ding Wood was zoned for forestry/amenity purposes.

16. In or about June 1995 the County Council, having considered the submissions made in regard to the draft plan, decided to produce an amended plan. To judge from the minutes of the County Council meetings in September and October 1996 which were exhibited there were at least two fairly major zoning amendments to the draft plan and there may well have been others. One of the these was the re-zoning of part of the Glen Ding Wood lands to allow for quarrying and related activities. The amended plan, in accordance with the terms of Section 21A, was put on display for a period of one month in October-November 1995. The evidence of the Applicant (which again appears to be unchallenged) was that there were 1,415 submissions from individuals and groups objecting to the proposed re-zoning at Glen Ding. This included a submission from the Applicant. Only one submission was made that was not opposed to the re-zoning. During the period from November, 1995 to September, 1996 it appears that there was a considerable amount of local agitation, including leafleting and public meetings, in regard to the re-zoning at Glen Ding. The Applicant asserts that in addition to the natural amenity value of the wood there are sites of major archaeological and historical significance on the site of the proposed quarrying. This is to some extent borne out by the letter of Mr Sweetman the Chief Archaeologist of the National Monuments Service in connection with the proposed planning permission.

17. On the 9th September, 1996 the County Council held its monthly meeting. Item number 5 on the Agenda for that meeting was "to consider report and representations received on the Amended Draft Blessington Development Plan and to consider making the Development Plan for Blessington."

18. The minutes of the meeting of 9th September, taken together with the amendments to those minutes contained in the minutes of the meeting of the 14th October, 1996 give a reasonably full account of the discussion by the Councillors on the item. It is clear that the Council was divided and that there were strongly held opinions on both sides, both as regards the Glen Ding amendment and as regards another amendment re-zoning an existing industrial estate for housing. Councillor Ruttle proposed the adoption of the amended Draft Development Plan as circulated. Councillor Fox seconded the proposal. The Chairman rejected an amendment proposed by Councillor Cullen and seconded by Councillor Ryan which proposed that the amended Draft Development Plan be adopted to include the original zoning for Glen Ding. The Chairman held that the proposal of Councillor Cullen and Councillor Ryan was a direct negative and not an amendment and that the same result would be achieved by voting against Councillor Ruttle's proposal. Councillor Ruttle's motion was carried by fifteen votes to seven with two absentees.

19. On the 8th January, 1997, within the agreed four month period, Roadstone applied for planning permission for the extraction of sand and gravel on 32.4 hectares of their lands at Deerpark, Blessington, County Wicklow.

20. As already stated the Applicant issued the present proceedings on the 7th March, 1997.

21. Counsel appearing for the four parties made oral submissions in regard to the various issues arising on the pleadings. They also provided the Court with written submissions and helpful books of authorities. In summary, Counsel's submissions covered the following issues.

22. Counsel for the Applicant, Mr Finlay, argued that the requirement for an extension of the period of review of the County Development Plan pursuant to Section 20(1A) is a mandatory one and that the Council had no jurisdiction to adopt a Development Plan for Blessington subsequent to the expiry of the extended review period on the 6th September, 1996. He contended that the Minister's order of 19th December, 1996 extending the period of review until the 31st December, 1997 could not operate retrospectively and certainly could not retrospectively validate the Council's resolution of the 9th September, 1996. He pointed out that the Minister's Order made no overt references to retrospection. Mr Finlay submitted that the subsection allowed for one period of extension of time and one only and that it was not open to the Minister to grant three successive extensions of time. He also submitted that an application under Section 20 for an extension of time for review of a plan was subject to the same conditions as regards notice, etc, as applied to an application for an extension of time for the making of an original plan under Section 19(6) and that no such public notice was given in this case. It was unsatisfactory that the Planning Authority, which had heavy responsibilities to the general public, should operate in the way in which it had. The Authority must act judicially and constitutionally in providing for the proper development of its administrative area. He rejected the claim of the Respondents that the Plan for Blessington was not part of the review of the County Wicklow Plan that was a "stand-alone" Plan under Section 19(5): The Minister's order extending referred to Section 20 only.

23. In regard to the issue of locus standi, Counsel pointed out that no issue of locus standi had been raised against the Applicant in the previous Section 27 proceedings against the Notice Party. He referred to Chambers -v- Sandoz [1992] IR134 as containing a wide and generous interpretation of locus standi in planning cases, and also to the recent Judgment of Morris J. in Lancefort -v- An Bord Pleanala & Ors (Unreported 6th June, 1997). The Affidavit of Frank Corcoran in the present proceedings brought the application within the parameters set out by Morris J. in the Lancefort case. In regard to the claim of laches by the Respondents and the Notice Party, Mr Finlay submitted that the Applicant did not become aware of the situation in regard to the extension of the review period until shortly before the proceedings were issued.

24. Counsel for the first named Respondent, Mr Gallagher, submitted that the County Council had followed all the proper statutory procedures in regard to notice, display, submissions, etc in the processing and adoption of the plan for Blessington. He argued that the plan for Blessington was not a part of the review of the County Wicklow Plan but was a separate plan under Section 19(5) of the 1963 Act: Such a plan for a town or other part of a functional area could be made at any time, whether or not within the Section 20 time limits. It could be made simultaneously with the review being carried out under Section 20. He argued also that the notice requirements set out under Section 19(6) applied only to extensions of the period for making the original County Development Plan and had no application to extensions of time for the review of that Plan.

25. He also submitted that the time requirements for the review of the County Development Plan set out in Section 20 were directory rather than mandatory in nature. The Section set out no penalty or particular consequence for failure to observe the proper time limits. There was, for example, no provision for the surcharging of Councillors or the disbandment of the Council, nor was there any provision invalidating a plan adopted outside the proper time limits.

26. In regard to the issue of locus standi he relied on the dictum of Lynch J. in Malahide Community Council Limited -v- Fingal County Council & Anor (Supreme Court unreported 14th May, 1997). He accepted that the dictum was expressly obiter but argued that the obiter dicta of a Judge of the Supreme Court should be given proper weight. In contrast to the instant case, the Applicants in Chambers -v- Sandoz were individuals who could well be affected personally by the operations of the Respondent. In the Lancefort case, the Applicants were held to have locus standi to oppose a particular planning permission: This was distinguishable from a situation where the Applicant sought to invalidate an entire Development Plan. He argued also that the Applicant had no locus standi whatever to challenge the conduct of the County Council meeting. In regard to laches Counsel pointed out that the Blessington Plan had been adopted and in being since the 9th September, 1996 and the Applicant's proceedings were issued only on the 10th March, 1997.

27. Counsel for the second named Respondent, Mr Healy, supported the submissions of Mr Gallagher. He particularly stressed the contrast between statutory provisions which were mandatory or imperative and those which were merely directory in nature. He suggested that the Court should consider when interpreting the Section what were the legal consequences of non-compliance with the time limits. If, for example, the County Council failed altogether to apply for an extension or the Minister refused an extension did that mean that the Planning Authority could never in the future review the original plan? Such a situation could not be in the public interest. A rigid view of the Section was unsustainable. Mr Healy agreed with Mr Gallagher that there was no basis for importing the provisions of Section 19(6) regarding notice in to an application for an extension for review under Section 20.

28. Counsel for the Notice Party, Mr Byrne, made similar submissions to those of Mr Gallagher and Mr Healy. He presented an extensive survey of both older and more modern case law in regard to the distinction between mandatory and directory provisions and statutes. I will refer later to a number of these cases. He argued that the Minister's order of the 19th December retrospectively covered the period from 6th September to 19th December, 1996. He opened law in regard to the possible retrospective effect of statutory provisions and submitted that, while in the main the Courts frowned upon retrospection, this did not apply to procedural matters of which the Minister's order was one. The Minister's order was delegated legislation in regard to a procedural matter of time limits, he said. He adopted the arguments of Counsel for the Respondents that the plan for Blessington was a stand-alone or separate plan and not part of the general review of the Wicklow County Development Plan.

29. As is clear from the pleadings and from the submissions of Counsel a variety of issues arise in the instant case. I will endeavour to deal with these issues in a logical order.

30. The first and basic issue is that of the locus standi of the Applicant company. In challenging the Applicant's locus standi the Respondents and the Notice Party chiefly rely on the dictum of Lynch J. at the conclusion of his Judgment in Malahide Community Council Limited -v- Fingal County Council & Anor (unreported 14th May, 1997). At page 32 of his Judgment the learned Lynch J. said:-

31. Neither of the other Judges of the Supreme Court who dealt with this case referred to this particular issue and the Chief Justice in particular reserved any decision on the point until he had heard it fully argued before him. However, it is clear that, as suggested by Counsel, the obiter dicta of a learned Judge of the Supreme Court must be treated seriously and with respect.

32. In countering this challenge, Counsel for the Applicant referred firstly to the Judgment of the learned McCarthy J. in Chambers -v- An Bord Pleanala and Sandoz (Ringaskiddy) Limited [1992] IR134 . In dealing with the issue of locus standi in that case the learned McCarthy J. at page 142 of the report stated:-

33. The learned Egan J. came to the same conclusion. At page 144 of the Report he stated:-

34. At page 146 the learned Egan J. concluded:-

35. The learned Finlay C.J., Hederman J. and O'Flaherty J. agreed with these conclusions. It is clear from this decision of the Supreme Court that locus standi in this type of case is widely defined and not readily refused. However, the Applicants in that case were natural persons and the question of the locus standi of a corporate body to maintain such proceedings did not arise.

36. That question was, however, carefully considered by the learned Morris J. (now President of this Court) after a hearing lasting six days in the case of Lancefort Limited -v- An Bord Pleanala, Ireland and the Attorney General and Treasury Holdings Limited (unreported 6th June, 1997). At page 3 of his judgment the learned Morris J. firstly decided that it was correct to deal with the issue of locus standi at the preliminary stage of leave to issue judicial review proceedings. He went on to say from page 4 onwards:-

37. The learned Morris J. then quoted the passage which I have already quoted above.

38. At page seven of his judgment the learned Morris J. continued:-

39. In regard to the issue of assets, the learned Morris J. subsequently made an Order providing for security for costs.

40. In the instant case, despite my respect for the obiter dicta of the learned Lynch J., I find myself in agreement with the conclusions of the learned President of this Court which he reached after a careful analysis of the facts and of the law. In the instant case Mr Corcoran in his Affidavit sworn on the 20th day of June, 1997 states at paragraph 3 onward:-

41. I might comment that it appears somewhat ironic that the Minister for the Environment who presented the Environmental Awareness Award to the Applicant for the reasons stated by Mr Corcoran should now in these proceedings be supporting the re-zoning of part of Glen Ding Wood to allow for quarrying. However, it is not the task of this Court to rule in any way on the merits or otherwise of the re-zoning decision which was proposed by Wicklow County Council in their amendment of the Draft Development Plan.

42. It is clear that the members of Blessington Heritage Trust Company are at least as qualified as those of Lancefort Limited to pursue this type of proceedings and indeed may well be more locally based and involved in the relevant area of Blessington. I must also take note of the fact that the locus standi of the Applicants was at no stage challenged by the Notice Parties during the course of the earlier Section 27 proceedings.

43. The framework and scheme of our legislation on local government planning and development is essentially one of balance between a number of interests - those of the developer (ranging from the individual developer to the major development company), those of the local planning authority in promoting proper planning and development in its administrative area, those of the Minister in maintaining central supervision under the legislation, and last but by no means least those of the ordinary members of the public who reside in the environment which is vitally effected both by overall development plans and by individual planning decisions. The rights of all these individuals and groups are carefully and in detail spelt out in the planning legislation and the Courts should at all times endeavour to maintain the balance envisaged in the legislation. In McGarry -v- Sligo County Council [1989] ILRM 768 the learned McCarthy J. famously described the development plan thus:-

44. In cases like the instant case it may well be argued, as it was in the Lancefort case, that companies such as the Applicant company have been incorporated simply to afford the true Applicants "a shield against an award of costs" to use the words of the learned Morris J. I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the Courts - or at least have that access made much more difficult - by the danger of an award of costs against him in a case where his opponent is a large development company with resources which enable it to pursue lengthy and costly litigation with comparative impunity. Over-reliance on the incorporation of companies such as the Applicant in this case may tip the balance too far in favour of objectors or concerned local persons; on the other hand, blanket refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well-resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J. The Court should look at the factual background in each case and, if necessary, maintain the balance by the making of an order for security for costs. I therefore conclude that the Applicant company has locus standi to maintain the present proceedings.

45. The issue of delay or laches was also raised. I do not consider this to be a major issue, since the delay involved was not of inordinate length, and I accept that, as stated by Mr Corcoran in his Affidavit, the Applicant was not in possession of the facts concerning the expiry of the period of extension on the 6th September, 1996 until shortly before the issue of the proceedings. The Applicant is not in my opinion debarred of its remedy by reason of delay. Nor do I consider it to be debarred by reason of its relatively minor failures to observe all the minutiae of company law.

46. The next issue which arises is as to whether the Blessington Plan is a "stand-alone" or "de novo" plan or part of the general review of the 1989 development plan for the administrative area of County Wicklow.

47. The Applicant submits that under Section 20(1A) of the 1963 Act the Minister may extend the five year period for a review of the Development Plan once and once only and that the Minister had no jurisdiction to extend the period on three occasions as he did. It is true that the subsection does not expressly provide for multiple or repeated extensions of time. However, a somewhat similar issue in regard to extensions of time in the planning process was dealt with by the learned Kelly J. in his unreported judgment in the case of Flynn and O'Flaherty Properties Limited -v- Dublin Corporation (unreported 19th December, 1996). In this judgment the learned judge was dealing with the provisions of Section 26(4)(A) of the Local Government (Planning and Development) Acts, 1963-1993 under which the period of consideration of a planning application may be extended. The Respondent in that case argued (as is argued in the instant case) that the statutory provisions permitted of only one extension of time and that no further extension was permitted. At page seven of his judgment the learned Kelly J. said:-

48. While the wording of Section 20 is not precisely the same as that of Section 26(4)(A) it seems to me that the principle involved is the same. Under Section 20 once the Minister has by his order granted an extension of time then the extended period becomes the period of review of the Development Plan and if necessary a further extension may be sought and with the Minister's approval be granted. There is nothing in the wording of Section 20(1A) which would indicate that not more than one extension of the period of review would be granted.

49. It may be noted that the general practice appears to be that repeated extensions of time are granted. Regular full five yearly reviews are in practice carried out by only a minority of Councils. In her book, "Environmental and Planning Law", Ms Yvonne Scannell points out at page 87 that

50. The author is critical of this situation and of the shortage of suitably qualified personnel in many Planning Authorities and goes on to remark

51. However undesirable the practice of repeated extensions of time may be, it does not appear to me to be impermissible under the section.

52. The next issue that arises is as to whether an application to the Minister for extension of time under Section 20(1A) is subject to the provisions of Section 19(6) in regard to the giving of notice of the making of such an application and allowing for objections. There is no specific provision for such notice in Section 20. The Applicant argues that it is contrary to the constitutional principles of fair procedures that the ordinary members of the public should not be put on notice that the review of the Development Plan for their area is to be delayed; therefore the provisions of Section 19(6) ought also to apply to an extension under Section 20(1A). While such a position might well be desirable it seems doubtful that it reflects the intention of the Oireachtas in framing Section 20(1A). This subsection was inserted in Section 20 by Section 43(1)(f) of the Local Government (Planning and Development) Act of 1976. It would have been a simple matter for the Oireachtas to include a provision applying Section 19(6)(B) and (C) to Section 20(1A) at the time of the amendment but this was not done. It seems to me that it would be going beyond the norms of interpretation for this Court simply to import a provision which the Oireachtas has specifically omitted.

53. I now turn to the most crucial issue in regard to the interpretation of the relevant Sections - the question as to whether the provisions governing the extension of the period for the review and variation of Development Plans are mandatory or merely directory. If the provisions are merely directory it would be possible for the Court to disregard the obvious fact that the County Council adopted the Blessington Plan at a time when the previous extension granted by the Minister had expired and a new extension had not been granted. If, on the other hand, the provisions are mandatory, the adoption of the Blessington Plan by the County Council on the 9th September, 1996 could well be invalid.

54. Counsel for the first and second named Respondents and for the Notice Party agree in their submission that the requirement for the extension of time by the Minister is directory only. Counsel for the Notice Party presented a particularly full book of authorities on this point to the Court, including a considerable number of older English cases in which the distinction between mandatory (or imperative) and directory is discussed. For example, in The Queen -v- Rochester Corporation [1856] 7 E and B 910, the Mayor and assessors of Rochester had refused to revise the burgess list for a particular parish on the ground that the list had not been fixed in some public place in the Borough for a week. It was held that the provisions of the Municipal Corporation Reform Act, 5 & 6 W.4c.76 as to the time at which the burgess list were to be revised were directory only. The criteria used in deciding that the enactments were directory are set out at pages 904 to 905 of the report as follows:-

55. As far as the modern law in this jurisdiction is concerned a somewhat similar pattern emerges. The question is helpfully discussed in the second edition of Hogan and Morgan's "Administrative Law in Ireland" at page 361 et seq. Under the heading "Formal and Procedural Requirements" the authors state:-

56. Hogan and Morgan go on to refer to two important Supreme Court decisions in the area of planning which they say have "somewhat blurred" the distinction between mandatory and directory provisions, as follows (at page 363):-

57. The learned authors conclude (at page 365) that:-

58. And again at page 365

59. In regard to legislation prescribing formal procedures Hogan and Morgan refer to the example of Ahern -v- Kerry County Council [1988] 1ILRM 382 as follows (at page 365):-

60. It appears to me that this discussion admirably summarises the principles of law applicable to this type of question and I have no difficulty in adopting the views of the learned authors, based as they are on judgments of the Supreme Court and of this Court.

61. The framework and scheme of planning legislation contained in the Local Government (Planning and Development) Act, 1963-1993 is an integral and carefully balanced system. The interests of both private and commercial developers are balanced against the interest of the general public who have a crucial involvement in the maintenance of the physical, historical and cultural environment and the proper development of the area in which they live. The Planning Authority, both by the making and reviewing of Development Plans and by the controlled granting of planning permissions, has the duty of holding the balance between these interests. The legislation provides for differing methods of supervision of the Planning Authority in carrying out its functions. In regard to the granting of planning permissions An Bord Pleanala has a supervisory role through the appeals procedure. In regard to the making and reviewing of development plans the Minister for the Environment has a supervisory role in ensuring that plans are made and later reviewed and brought up to date within a proper time-scale. All of these elements in the planning legislation interact with each other and form part of a coherent whole. The requirement that it is for the Minister to decide whether to extend the five year period for review of the Development Plan was specifically introduced into Section 20 of the 1963 Act by Section 43(1)(f) of the 1976 Act. It seems more than likely that this was for the particular purpose of introducing Ministerial supervision and control over a situation where time limits were not being adhered to. In the instant case the Minister clearly took this duty seriously. Wicklow County Council applied for an extension of time by letter dated 30th August, 1996. The Minister did not make his extending order until 19th December, 1996, some three and a half months later, and then granted an extension only until the end of 1997, rather than until September 1999 as requested by the Council. One may surmise that this reduction was to enable closer and more frequent scrutiny of the progress being made by the County Council in the review of the Development Plan.

62. In this balanced and integrated legislative scheme, is it right that the Court should hold that Section 20 is merely directory and that the County Council may disregard the time limit set, and the role of the Minister under Section 20(1A), with impunity? I think not. The adoption of the Blessington Plan with its controversial re-zoning amendments, was no mere formality. It was described by one of the Councillors who spoke at the meeting on 9th September, 1996 as being something that would divide the community. Yet the members of the Council proceeded to adopt it outside the statutory period for review and before the Minister had had an opportunity to reach a decision on providing a further extended period. This they did knowingly, since they themselves had on the 8th July, 1996 approved the making of a request to the Minister to extend the period of review from 6th September, 1996 to 6th September, 1999. It appears to me that the requirements of Section 20, including Section 20(1A) are mandatory in nature and that prima facie the adoption by Wicklow County Council of the Blessington Plan on the 9th September, 1996 was invalid.

63. I am strengthened in my view by the decision of the late Butler J. in an older case dealing with the statutory requirements of the 1963 Act. In Finn v. Bray Urban District Council [1969] IR 169 the learned Butler J. held that failure to notify the plaintiff of an amendment to a draft plan to which she had objected resulted in a declaration that the adoption of the development plan by the County Council was ultra vires. At page 176 of the report the learned Judge stated:

64. There is no suggestion here that any of the statutory requirements is directory and may safely be ignored.

65. However, I must also consider the effect of the Minister's order of 19th December, 1996. Counsel for the Respondents and the Notice Party argue that this order was retrospective in its effect, that it extended the review period not from 19th December onwards but from 6th September, 1996 to 31st December, 1997 - and that it retrospectively validated the County Council's adoption of the Blessington Plan on 9th September, 1996. On its face the Minister's order merely extends the Section 20 review period to 31st December, 1997. No specific mention is made of retrospectivity or back-dating. Counsel for the Applicant suggests that once the extended review period expired on 6th September, 1996 the Minister had no jurisdiction in any circumstances to re-extend it. To accept this would, however, be to create a position where the 1989 plan would remain in being indefinitely. Such an interpretation would be contrary to the entire system and spirit of the legislation and I cannot accept that it would reflect the intention of the Oireachtas in enacting Section 20 and subsequently Section 20(1A). I have no difficulty in accepting that the Minister's order of 19th December, 1996 is valid insofar as it effects the period from 19th December, 1996 to 31st December, 1997 and, indeed, that it is within the Minister's jurisdiction to extend that period further if there is good reason to do so. The question is whether the order of 19th December can retrospectively validate the adoption of the Blessington Plan on the 9th September, 1996.

66. There is a very considerable amount of settled law on statutory interpretation concerning the possible retrospective statutes. The leading case in this jurisdiction is Hamilton -v- Hamilton [1982] IR 466 in which the Supreme Court held against a retrospective operation of Section 3 of the Family Home Protection Act, 1976. I have recently surveyed the question of retrospection at some length in the case of Nessan Quinlivan -v- The Governor of Portlaoise Prison and The Director of Public Prosecutions (unreported 9th December, 1997) and I see no necessity to go over the same ground here. The situation is briefly summed up in Maxwell's "Interpretation of Statutes" (12th edition) at page 215 as follows:-

67. The only exception to the rule against retrospectivity is where retrospection occurs as regards matters of procedure only. I think that I have already indicated that I do not consider the Minister's power of extension under Section 20(1A) to be a mere matter of procedure but to be in fact an integral part of the scheme of planning legislation.

68. The Minister's order of 19th December, 1996 is not of course itself legislation but a form of delegated legislation. It would therefore be all the more necessary, in my opinion, for it to include on its face specific words of retrospectivity if it were to operate retrospectively. I cannot accept that it does so operate.

69. Finally, should the Court in its discretion refuse the relief sought by the Applicant? The situation on the 9th September, 1996 was that the County Council both through its members and through its officials was well aware that the extended period of review had expired on the 6th September, 1996 and had not yet been renewed. Yet they did not hesitate to list the matter of the adoption of the Blessington Plan on the agenda for their meeting on 9th September, 1996, to discuss it, and to proceed to adopt the Plan (despite the high preponderance of objections from members of the public against the amended zoning). I feel I must also have regard to the fact that the Council had, in parallel with the Applicant, negotiated a settlement by both parties with the notice party of the Section 27 actions in the context of the zonings contained in the Draft Plan of January, 1994. Again, the Council must have at least suspected that the Applicant was unlikely to have accepted such a settlement had its members known that the Council was about to re-zone the area in a way directly favourable to the Notice Party. It seems to me that the Court should not use its discretion to refuse the primary relief sought by the Applicant. While the quashing of the resolution of 9th September, 1996 will not prevent Wicklow County Council from returning, during a period properly authorised by the Minister, to the adoption of a plan for the Blessington area as part of the general statutory review of the Development Plan for the Wicklow area, it will give the Council an opportunity, which I hope will be useful, to re-consider the zoning matters which arise on the plan in the light of any new information which has come to hand since September, 1996.

70. I turn now to the actual orders sought by the Applicant as set out in paragraph D of its application. I will deal with them in numerical order.