High Court of Ireland Decisions

Eircell Ltd. v. Leitrim County Council [1999] IEHC 1; [2000] 1 IR 479; [2000] 2 ILRM 81 (26th March, 1999)

BETWEEN

1. This case comes before the Court on foot of an Order of the High Court dated the 26th day of March 1999 granting the Applicant leave to apply for judicial review by way of Declarations and Orders of Certiorari as follows;

1. A Declaration that the Order made by the Respondent on the 1st day of March 1999 whereby it was decided to revoke a grant of planning permission bearing the register reference number P/13655 is ultra vires, invalid and of no legal effect.

2. An Order of Certiorari quashing the said Order of the Respondent made the 1st day of March 1999.

3. A Declaration that the notice of revocation dated the 2nd day of March 1999 and served on the Applicant herein is ultra vires, invalid and of no effect.

4. An Order of Certiorari quashing the said notice of revocation dated the 2nd day of March 1999.

2. At the hearing of the said Application, I was referred to an Affidavit sworn on the 26th day of March 1999 by Mr Thomas Murtagh, the Network Construction Manager of the Applicant Company and the documents therein referred to and to an Affidavit sworn on the 19th day of July 1999 by Mr Thomas McCartan, an elected representative of the Respondent Council, and the documents therein referred to and I heard submissions from Counsel on behalf of each of the Parties.

The Facts

1.(a) By Order dated the 23rd day of June 1998, the Respondent granted to the Applicant planning permission bearing the Register Reference Number P/13655 for a development comprising the erection of a 32 metre telecommunications support structure and antennae, associated containerised equipment, shelter and associated development works at Tully, Ballyinamore, Co Leitrim.

(b) the said order was granted pursuant to the decision of the County Manager of the Respondent Council.

2. On the 28th day of July 1998, notification of the granting of the planning permission aforesaid issued to the Applicant.

3. By resolution of the elected members of the Respondent Council passed on the 1st day of March 1999, at a special meeting of the said members, it was decided to revoke the said grant of planning permission.

4. By notice dated the 2nd day of March 1999, served on the Applicant pursuant to Section 30 of the Local Government (Planning and Development) Act 1963, as amended, the Respondent purported to revoke the said grant of planning permission. The reason furnished for the purported revocation was in the following terms, namely; "Change of circumstances:- considerable fear, apprehension and opposition within the local community at Ballinamore as to the health implications, impact on property values, tourism and visual implications of the proposed development have been expressed to the elected members and this was not a matter that the elected members had been aware of at the date of the grant of permission".

5. At the special meeting aforesaid, of the elected members of the Respondent Council held on the 1st day of March 1999 at which it was decided to revoke the said grant of planning permission and in advance of taking that decision, the said members of the Respondent Council were advised that the Planning Officer thereof had certified that no change in circumstances relating to the proper planning and development of the area concerned had occurred since the granting of the said permission

6. The Applicant received no prior notification of the intention of the said elected members to consider the revocation of the said grant of planning permission at the special meeting aforesaid and the Respondent failed to afford the Applicant the opportunity to make submissions or representations as to whether or not the said permission should be revoked. Moreover, prior to taking the decision to revoke the said grant of planning permission, the said elected members made no inquiry to ascertain the circumstances which obtained at the time at which the said planning permission was granted for the purpose of ascertaining whether or not any change of circumstances had occurred since that time and neither did they investigate, nor was it established that the fear, apprehension and opposition in the local community at Ballyinamore as to the health implications, impact on Property values, tourism and visual implications of the proposed development which allegedly had been expressed to the said elected members was, in fact, justified.

The Issues

1. On behalf of the Applicant it was submitted that the said resolution of the elected members of the Respondent Council the 1st day of March 1999 whereby it was decided to revoke the said grant of planning permission of the 23rd day of June 1998 was made without jurisdiction and, accordingly, is ultra vires, invalid and of no legal effect for the reasons:

(a) the requirements of constitutional justice and basic fair procedures were not observed by the elected members of the Respondent Council, in that, no prior notification of the intention of the elected members of the Respondent Council to consider the revocation of the said grant of planning permission at a meeting to be held on the 1st day of March 1999 was given to the Applicant and neither was the Applicant afforded the opportunity to make submissions or representations as to whether or not the said permission should be revoked,

(b) no change in circumstances, as required by the provisions of Section 30 (2A) of the Local Government (Planning and Development) Act 1963, had occurred between the date upon which the said planning permission had been granted and the date upon which the said elected members purported to revoke it and

(c) Insofar as the said elected members purported to rely on a change in circumstances when arriving at their decision to revoke the said grant of planning permission, the grounds upon which they placed such reliance were flawed, in that, prior to arriving at their decision, the said elected members had not established the circumstanceswhich obtained on the date upon which the said planning permission was granted nor did they conduct any investigation to ascertain what change in circumstances (if any) relevant to proper planning and development of the area concerned has taken place in the interim and, in that regard, it was submitted that a fear of the possible consequences of granting a planning permission was not, of itself, a proper consideration when deciding whether or not to grant a permission: rather was it necessary to establish facts to justify that fear.

2. On behalf of the Respondents, it was submitted that, as the provisions of Section 30 of the Local Government (Planning and Development) Act 1963, as amended, does not require that the recipient of a grant of planning permission be advised of an intention on the part of the planning authority to consider a revocation of the said grant, it was not necessary to give the Applicant prior notification of the said special meeting of the 1st March 1999 and, as any person on whom a notice of revocation of a planning permission is served (which would include the Applicant) may, within one month from the date of that notice, appeal to the Minister against the same, it was open to the Applicant to make whatever submissions or representations with regard to the propriety of revoking the said grant of planning permission as was considered meet. Accordingly, the rules of constitutional justice or the requirements of fair procedures was not offended. It was also submitted on behalf of the Respondents that the onus of proving that there had been no change in circumstances which entitled the Respondents to revoke the said grant of planning permission restedwith the Applicant and that it was for the Applicant to establish that the change in circumstances relied upon by the elected members of the Respondent Council when deciding to revoke the said grant of planning permission, had not been considered at the time when the said permission was granted. Furthermore, it was submitted on behalf of the Respondent that the planning authority is the body best able and best qualified to deal with planning matters and that, as it was open to the Applicant to appeal against the revocation of the said grant of planning permission; at the hearing of which proper planning and development of the area concerned would be considered, the proper course of action on the part of the Applicant would have been to lodge an appeal against the said revocation order rather then seek relief by way of judicial review, which is a discretionary relief and, therefore, inappropriate; particularly, as it has been held that the Courts should be slow to intervene in planning matters.

The Law

3. The relevant portions of Section 30 of the Local Government (Planning and Development) Act 1963, as amended by Section 39 of the Local Government (Planning and Development) Act 1976 provides as follow:

"(1) subject to the provisions of this Section, if the planning authority decide that it is expedient that any permission to develop land granted under this part of this Act should be revoked or modified, they may, by notice served on the owner and the occupier of the land effected and on any other person who in their opinion will be effected by the revocation or modification, revoke or modify the permission.

(2) In deciding, pursuant to this Section, whether it is expedient to serve a notice under this section, the planning Authority shall be restricted to considering the proper planning and development of the area of the Authority (including the preservation andimprovement of the amenities thereof), regard being had to the provisions of the Development Plan and the provisions of any special amenity area order relating to the said Order.

(2a) A planning authority shall neither revoke nor modify a permission under this section unless there has been a change in circumstances relating to the proper planning and development of the area concerned and such change in circumstances has occurred

(a) in case a notice relating to the permission is served under this section and is annulled, since the annulment of the notice,

(b) in case no notice is so served, since the granting of the permission.

(2B) in case a planning authority pursuant to this section revoke or modify a permission, they shall specify in their decision the change in circumstances which warranted the revocation or modification.

(3) Any person on whom a notice under this section is served may, at any time before the day (not being earlier then one month after such service) specified in that behalf in the notice, appeal to the Minister against the notice.

(4) Where an appeal is brought under this section against a notice, the Minister may confirm the notice with or without modifications or annul the notice, and the provisions of subsection (2) of this section shall apply, subject to any necessary modifications, in relation to the deciding of an appeal under this subsection by the Minister as they apply in relation to the making of a decision by a planning authority.

....................................

(7) a notice under this section shall state the reasons for which it is given and particulars of it shall be entered in the Register.

(8) the revocation or modification under this section of a permission shall be a reserved function."

4. In the light of those provisions, it is clear that there are two necessary

prerequisites for the revocation of a grant of planning permission by a planning authority, namely;

(1) in deciding whether it is expedient to revoke the permission, the Authority are restricted to considering the proper Planning and Development of the area concerned and

(2) the permission shall not be revoked unless there has been a change in circumstances relating to the proper planning and development of the area concerned and such change in circumstances has occurred since the granting of the permission. In this case, the Applicant argues that, whether or not those prerequisites were satisfied when the elected members of the Respondent Council decided to revoke the said Grant of Planning Permission, it is manifest that, before reaching their decision, they made no enquiry as to the circumstances which obtained at the time when the County Manager of the Respondent Council granted the permission and neither did they conduct any investigation to ascertain whether or not there was any justification for the fear, apprehension and opposition within the local community with regard to the proposed development; that fear, apprehension and opposition being the stated change in circumstances upon which they relied when arriving at their decision. Accordingly, in the absence of such enquiry and investigation, Counsel on behalf of the Applicant argued that, when arriving at their decision to revoke the said grant of planning permission, the elected members of the Respondent Council did not have anysufficient information to enable them to determine whether or not there had been a change in circumstances relating to proper planning and development of the area concerned since the granting of the planning permission nor, indeed, to enable them to consider the proper planning and development of the area concerned; it being argued that fear, apprehension and opposition, of itself, it not a proper planning consideration. On the contrary, Counsel on behalf of the Applicant argued that the elected members arrived at their decision to revoke the said grant of planning permission in the teeth of the advice of their planning officer that no change in circumstances had occurred since the permission had been granted which, on the face of it, would appear to be in direct contravention of the provisions of subsection 2a of the 1963 Act and, in that regard, Counsel submitted that, on any reasonable interpretation of that subsection, the onus of proving that any changes in circumstances had occurred rested with the planning authority. As I interpreted the submissions of Counsel on behalf of the Respondents, it was accepted, that before reaching their decision to revoke the grant of planning permission aforesaid, the elected members of the Respondent Council had not inquired into the circumstances which had obtained at the time when the County Manager had decided to grant the planning permission and, apart from the fact that they hadsubsequently learnt of the fear, apprehension and opposition within the local community with regard to the proposed development, they had not investigated the whys or wherefors of those expressed concerns nor weighed them against considerations of proper planning and development of the area in question. However, he argued that the onus of proof was on the Applicant to establish what matters had been considered by the County Manager when granting the said planning permission and, in particular, that the matters relied on by the elected members when deciding to revoke that permission had not been considered by the County Manager at that time and, if it be the case thatno change in circumstances had occurred between the date on which planning permission had been granted and the date of its revocation, it was incumbent upon the Applicant to establish that fact. In any event, he submitted that the expressed reasons for the decision of the elected members of the Respondent Council to revoke the said grant of planning permission constituted a change in circumstances within the meaning of subsection 2a of the 1963 Act and, on that account, the elected members were entitled to reject the opinion of their planning officer that no change in circumstances had occurred. In support of those propositions, Counsel for the Applicant referred to a decision of the Supreme Court given in a case ofDenis O'Keefe -v- An Bord Pleanala, Francis O'Brien and, by Order of the Court, Radio Tara Limited (1992 ILRM at page 237) in which it was held that an Applicant, when seeking to quash a decision of An Bord Pleanala on the basis of irrationality, must satisfy the Court that the decision making body had no relevant material before it which would support its decision; the onus of establishing that no relevant material existed rested with the Applicant. In the course of thejudgment of the court delivered in that case, Chief Justice Finlay stated "under the provisions of the planning acts, the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the Planning Authorities and the board, which are expected to have special skill, competence and experience in planning questions. The Court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters. 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 ofthe Court that the decision making Authority had before it no relevant material that would support its decision". Later on in his judgment, Chief Justice Finlay added that he was influenced in that conclusion by the decision of the Supreme Court given in a case of P. and F. Sharpe Limited and Grove Developments Limited -v- Dublin City and County Manager Dublin and County Council (1989 I.R. Page 701) in which it was held that the onus lay on an Applicant for judicial review to prove that a decision by the County Manager refusing an Application for planning permission was unreasonable having regard to the material upon which that decision was reached and that, if he fails in that onus, he must fail his claim for review. However, I think that it is significant that, in both of those cases, what exercised the minds of the Court was whether or not the decision of the planning authority had been unreasonable. In that context, in the course of hisjudgment in the case of O'Keefe -v- An Bord Pleanala and others, Chief Justice Finlay quoted with approval principals laid down by the Supreme Court in a case of The State (Keegan) -v- Stardust victims compensation tribunal (1986 I.R. at page 642) in which the following principals with regard to the circumstances under which the Court could intervene to quash the decision of an administrative officer, or tribunal, on grounds of unreasonableness or irrationality were:-

(1) It is fundamentally at variance with reason and common sense,

(2) It is indefensible for being in the teeth of plain reason and common sense and

(3) because the Court is satisfied that the decision maker had breached his obligation whereby he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision. In that context, Counsel for the Applicant submitted that, in this case, the decision of the elected members of the Respondent Council to revoke the said grant of planning permission was not being challenged on the grounds that is was unreasonable or irrational but rather on the grounds that, in arriving at their decision, the elected members had not armed themselves with sufficient information to enable them to come to any conclusion, reasonable or otherwise, with regard to the question which they had to decide and that, in any event, subsection 2a of the 1963 Act fairly and squarely placed the onus on the planning authority, when deciding whether or not to revoke a planning permission, to establish that there had been a change in circumstances relating to the proper planning and development of the area concerned since the permission had been granted. While conceding that the provisions of Section 30 of the Local Government (Planning and Development) Act 1963, as amended, does not require that a person, who may be affected by a revocation of a grant of planning permission, should be advised of the intention of the planning authority to consider such revocation and that, in the circumstance that any person affected by a revocation order had a right to appeal against that revocation and, on the hearing of that appeal, would have the opportunity to rectify any perceived inadequacies in the observance of principals of constitutional justice and fair procedures which obtained when the revocation order was made, Counsel for the Applicant submitted that the absence of a provision whereby a person, who might be affected by a revocation order, be given notice of the intention to consider such revocation did not absolve the Respondents from their legal obligations to observe such principals when deliberating that decision and that, in the absence of the observance of principals of the constitutional justice and fair procedures when the decision was taken to grant the revocation order, an appeal would not remedy that illegality. On the contrary, an appeal in those circumstances could be interpreted as condoning the illegality because a revocation order is a final decision, subject only to it being appealed, and, therefore, the absence of the observance of constitutional justice and fair procedures, when the decision to make the revocation order is made cannot be ignored. In that regard, Counsel for the Applicant submitted that the elected members of the Respondent Council, when meeting to consider the revocation of the said grant of planning permission, where a body having legal authority to affect citizens rights and, accordingly, they are required by law to act judicially. In that regard, he referred to the decision of the Supreme Court in the case P and F Sharpe Limited and Grove Developments Limited -v- Dublin City and County Manager and Dublin County Council, herein before referred to, in which, in the course of the judgment of the Court Chief Justice Finlay stated

"It is, of course, clear and has been consistently laid down by this Court that the making of a decision to withhold or grant permission of an Application for planning permission under the Act of 1963 is a function of a planning authority which must be exercised in a judicial manner. The practical consequences of that are that the decision making authority must have regard to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced. Parties affected by such a decision must get a fair and proper opportunity to have their views conveyed to the decision making authority which must act fairly in all respects in arriving at its decision."

5. Counsel for the Applicant submitted that those principals equally applied with regard to the decision of the elected members of the Respondent Council to revoke the grant of planning permission with which this case is concerned. Further more, he referred to a decision of the Supreme Court delivered in the case of The State (Irish Pharmaceutical Union) -v- the Employment Appeals Tribunal (1987 IRLM at page 36) in which, in the course of the judgment of the Court McCarthy J stated "whether it be identified as a principal of natural justice derived from the common law and known as Audi Alteram Partem or, preferably, as the right to fair procedures under the constitution, in all judicial or quasi judicial proceedings, it is a fundamental requirement of justice that person or property should not be at risk without the party charged being given an adequate opportunity of meeting the claim, as identified and pursued, and if the proceedings derived from statute, then, in the absence of any set or fixed procedures, the relevant authority must create and carry out the necessary procedures ......... in such a fashion as to ensure compliance with constitutional justice." And he argued that in the light of those principals, the failure of the elected members of the Respondent Council to advise the Applicant of their intention to consider the revocation of the said grant of planning permission, their failure to afford the Applicant the opportunity to make submissions or representations with regard to the question as to whether or not that revocation order should be made and, if they felt inhibited by the absence in section 30 of the 1963 Act of any provision whereby any persons affected by a revocation order would be given prior notification of an intention to consider such revocation, their failure to supplement that omission in such a fashion as to ensure compliance with constitutional justice all amounted to a disregard of the principals of constitutional justice and fair procedures and, accordingly, vitiated their decision to revoke the said grant of planning permission. With regard to the submission on the behalf of the Respondent that, as relief by way of judicial review is a discretionary remedy and the planning authority is the body best able and qualified to deal with planning matters and, as it is the case that, in the event of an appeal against the said revocation order, any person aggrieved by that order would have the opportunity of redressing any want of observance of principals of constitutional justice and fair procedures at the time that the said revocation order was made, the applicants proper course of action would have been to appeal against the making of the said revocation order rather then seeking relief by way of judicial review, Counsel for the Applicant referred to a decision of the Supreme Court in a case ofDamien Duff -v- District Justice Mangan, Judge John Gleeson and the Director of Public Prosecutions (1994 ILRM at page 91) in which it was held that Certiorari is a discretionary remedy which the Court will grant cautiously when there is an adequate alternative remedy which had been inadequately prosecuted and he referred to the judgment of the Court delivered by Denham J. in which she quoted with approval a statement by Chief Justice O'Higgins delivered in a case of The State (Abenglen Properties Limited) -v- Dublin Corporation (1982 ILRM at page 590) in which Chief Justice O'Higgins, reviewing the remedy of Certiorari stated

"the question immediately arises as to the effect on the exercise of the Courts discretion, of the existence of a right of appeal or an alternative remedy. It is well established that the existence of such ought not to prevent the Court from acting. It seems to me to be a question of justice. The Court ought to take into account all the circumstances of the case, including the purpose for which Certiorari was being sought, the adequacy of the alternative remedy and of course the conduct of the Applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such should be immaterial. Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where, under administrative legislation, adequate appeal machinery, particularly suitable for dealing with errors in the application of the code in question, exists. In such cases, while retaining always the power to quash, the Court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate."

6. And Counsel for the Applicant argued that, in this case, an appeal against the decision of the elected members of the Respondent Council to revoke the said grant of planning permission does not afford the Applicant an adequate remedy for the reason that an appeal would only be concerned with the merits of the case and would not address the question as to whether or not the decision to grant the said revocation order was made without observing principles of constitutional justice and fair procedures or whether or not the said revocation order was made without jurisdiction. Counsel for the Applicant also referred to a decision of Kelly J. in the HighCourt given in a case of Patrick Bane, Donal O'Gallachoir and Frank Gunne -v- The Garda Representative Association, Paul Browne, Michael Kirby, P J Kelly, Kieran McDermott and John Fahy (1997 2 I.R. at page 449), in which, in the course of his judgment, the learned High Court judge stated - "I am of the view that in a case where a number of remedies are open to Applicants to vindicate their rights, they are entitled to choose the one which best suits them." And he argued that, in this case the remedy of Judicial Review was the one best suited to this Applicant. He also referred to a judgment in the Chancery Division of the English Courts in a case of Leary -v- National Union of Vehicle Builders (1971 Ch at page 34), in which, in the course of his judgment, the learned trial judge stated "If a man has never had a fair trial by the appropriate trial body, is it open to an appellate body to discard its appellate functions and itself give the man the fair trial that he has never had? I very much doubt the existence of any such doctrine". And further on in his judgment stated "as a general rule at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body"; views which were endorsed and approved of by Pringle J. in the course of his judgment in a case of Ingle -v- O'Brien (1975 109 ILTR at page 7), by Doyle J. in a case of Nicholas Moran -v- The Attorney General, Donal T Kearney and Michael O'Brien (1976 I.R. at page 400) and by Hamilton J. (as he then was) in the case of The Irish Family Planning Association Limited and Joan M Wilson -v- Patrick Noel Ryan & Ors (1979 I.R. at page 295); a case in which, incidentally, in the course of the judgment of the Supreme Court delivered by Chief Justice O'Higgins, the learned Chief Justice, when considering the construction of legislation, endorsed the decision of the Supreme Court given in a case of East Donegal Co-operative Livestock Mart Limited & Ors -v- The Attorney General (1970 I.R. at page 317), in which it was held that where a statute is presumed to be constitutional (as is the Local Government (Planning and Development) Act 1963, as amended) that presumption carries with it the consequent presumption that powers of a discretionary nature conferred by such a statute are not intended to be arbitrary powers and are only exercisable in aconstitutional matter; the implications of that statement of the law in the context of this case being that the power of the planning authority conferred by Section 30 of the Local Government (Planning and Development) Act, 1963, as amended, must be exercised in a constitutional manner.

7. Reference was also made to a decision of Miss Justice Carroll delivered in a case of Rosemary Gammell -v- Dublin County Council (1983 ILRM at page 413), in which the learned trial judge held that, in a case in which the requirements of natural justice were not observed by a body who is required to observe such principles when coming to a decision the audi alteram partem rule is not breached if it is possible for the party aggrieved by that decision to make appropriate representations before the decision becomes effective; the argument on behalf of the Respondent being that, in the instant case, in the circumstance that the Applicant could appeal against the revocation order made by the elected representatives of the Respondent Council within a month of the date of the notice of that order, the decision to revoke the said planning permission did not become effective during that month. However, Counsel for the Applicant argued that, in the instant case, the revocation order of the elected members of the Respondent Council was a final decision (subject to appeal) and that therefore the Applicant did not have an opportunity to make representations, other than representations at the hearing of an appeal, before the decision became effective.

Conclusions

8. In my view, in considering whether or not to revoke the decision of the County Manager of the Respondent Council to grant planning permission to the Applicant on the 23rd day of June, 1998, the elected members of the Respondent Council did not sufficiently inform themselves of the circumstances which obtained when that planning permission was granted and did not sufficiently investigate the alleged fears, apprehension and opposition within the local community so as to enable them to determine whether or not a change in circumstances had occurred since the said permission was granted or to enable them to consider proper planning anddevelopment in the area concerned and, while they were not bound by the opinion of their planning officer that no change in circumstances had occurred, it seems to me that the mere fact that their planning officer expressed that opinion was all the more reason why it was incumbent upon them to enquire into the circumstances which obtained at the time when the decision to grant planning permission was taken and to investigate the alleged circumstances on which they relied when arriving at their decision to revoke that permission. In that regard, I do not consider that fear, apprehension and opposition within the local community with regard to the proposed development, even accepting that that fear, apprehension and opposition only became manifest after the planning permission had been granted, it is, of itself, a proper planning consideration or a change in circumstances within the meaning of Section 30 of the Local Government (Planning and Development) Act, 1963, as amended. It may well be that the factors which provoked such alleged fear, apprehension and opposition within the local community are matters which are relevant to a consideration of proper planning and development of the area concerned and are matters which constitute a change in circumstances within the meaning of Section 30 of the 1963 Act. However, I am satisfied that, when arriving at their decision to revoke the said grant of planning permission, the elected of the Respondent Council were not sufficiently informed with regard to those factors (if any) to pass anyjudgment thereon. In this regard, I am not persuaded by the authority of the decisions of the Supreme Court given in the cases of Denis O'Keeffe -v- An Bord Pleanala & Ors and P & F Sharpe Limited & Anor -v- Dublin City and County Manager & Anor that the onus is on the Applicant to establish, either what matters were considered by the County Manager, when he decided to grant the said planning permission and, in particular, that the matters relied on, when the decision to revoke the said planning permission was taken, were not considered by him at that time or that no change in circumstances had occurred since that permission was granted. In my view, the circumstances under which those two decisions were given and the grounds therefore are distinguishable in the instant case, in that, in the cases ofO'Keeffe and Sharpe the Courts were concerned with allegations of unreasonableness and irrationality with regard to the impugned decisions whereas, in this case, the validity of the revocation made by the elected representatives of the Respondent Council is challenged; not on the grounds of unreasonableness or irrationality on the part of the decision makers, but on the grounds that they did not sufficiently inform themselves with regard to all relevant matters before reaching their decision and, in my view, these are two totally different concepts. That being so, I do not think that the decisions laid down in the cases ofO'Keeffe and Sharpe are relevant to the issues which I have to decide in this case and, given that Section 30 of the Local Government (Planning and Development) Act, 1963 specifically requires that, when deciding whether it expedient to revoke a planning permission, the planning authority is restricted to considering proper planning and development of the area concerned and shall not revoke a permission unless there has been a change in circumstances relating to proper planning and development of the area concerned since the granting of the permission, and as it is myjudgment that, when deciding to revoke the said grant of planning permission, the elected members of the Respondent Council did not have sufficient information to enable them to make any judgment on those matters, I am satisfied that the decision to revoke the said grant of planning permission was invalid.

9. Apart from the foregoing, I am persuaded by the authority of the several decisions of the Supreme Court given in the cases of P & F Sharpe Limited and Anor -v- Dublin City and County Manager and Anor, The State (Irish Pharmaceutical Union) -v- Employment Appeals Tribunal and East Donegal Co-operative Livestock Mart Limited -v- Attorney General, all hereinbefore referred to, that, when taking the decision as to whether or not to revoke the said grant of planning permission, the elected members of the Respondent Council were obliged to act judicially and, in the context of this case, as I interpret those decisions, it is a fundamental requirement of justice that the Applicant should have been given prior notification of the intention of the elected members of the Respondent Council to consider the revocation of the said grant of planning permission and be afforded the opportunity to make submissions or representations with regard to the question as to whether or not the said grant of permission should be revoked. Moreover, I am not persuaded that the absence of any provisionin Section 30 of the 1963 Act, as amended, whereby a person might be affected by a revocation should be notified of the intention of the planning authority to consider making such an order absolved the Respondent Council from giving such notification to the Applicant. In my view, it is clear from thejudgment of The Supreme Court given in the case of The State (Irish Pharmaceutical Union) -v- Employment Appeals Tribunal, that where a body is making a decision arising from a statutory power and, when making that decision, that body is obliged to act judicially, then, in the absence of a procedure laid down by the statute from which the power derives, the body making that decision must supplement that lacuna in such a fashion as to ensure compliance with constitutional justice. In this case, I am satisfied that, before deciding whether or not they should revoke the grant of planning permission aforesaid, the elected members of the Respondent Council, in accordance with principles of constitutional justice and fair procedures, were obliged to give the Applicant prior notification of their intention to consider the revocation of the said grant of planning permission and to afford the Applicant the opportunity to make submissions or representations in that regard but that they failed to do so and, furthermore, failed to adopt a procedure whereby compliance with constitutional justice was ensured. Accordingly, I am satisfied that their decision to revoke the said grant of planning permission was invalid on that account also.

10. In conclusion and for the sake of completeness, I am not persuaded, although I accept that I have an inherent discretion to refuse the relief sought by the Applicant herein on the grounds that there was an alternative remedy open to it which has not been prosecuted i.e. the right to appeal to the Minister against the decision to revoke the said grant of planning permission, to exercise that discretion in favour of the Respondent. In that regard, and in light of the several authorities referred to above, I have no doubt but that I am entitled to exercise that discretion in favour of the Applicant and furthermore, that is in the interest of justice that I should do so; if for no other reason than that the public at large are entitled to know that the planning authority cannot ride roughshod over principles of constitutional justice and fair procedures which, in the event that the Applicant had chosen to appeal to the Minister against thedecision of the elected members of the Respondent Council to revoke the said grant of planning permission, was unlikely to have come into the public domain and, in that regard, I do not accept that the unreported judgment of Mr Justice Geoghegan delivered on the 30th day of July, 1999 in a case of Elizabeth Hughes -v- An Bord Pleanala, Monaghan County Council and Castleblayney Urban District Council is authority for the proposition that the Courts should be slow to intervene in planning matters. As I interpret that judgment, the learned trial judge avoided comment on any question relating to the merits of the case, which was concerned with planning matters, on the grounds that those are matters to be determined by the planning authority. However, he did not conclude that the Courts should be slow to intervene in planning matters when that intervention did not involve any adjudication on the merits of a planning application or, indeed, on the merits of the revocation of a planning permission. Like Chief JusticeFinlay in the course of his judgment in O'Keeffe -v- An Bord Pleanala, I accept that questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area are within the jurisdiction of the planning authorities who are expected to have special skill, confidence and experience with regard to such matters and the Court should not exercise a discretion in that regard. However, in arriving at the conclusions to which I have arrived in this case, it was not my intention to passjudgment on the merits of the decision to revoke the planning permission granted to the Applicant and I do not think that I have done so. Rather have I condemned the failure of the planning authority to sufficiently inform themselves with regard to relevant matters before arriving at that decision and their failure to observe principles of constitutional justice and fair procedures in the course of their deliberations. Accordingly, while I accept that the Courts should avoid intervention in matters which are purely related to proper planning and development, I do not accept that they should necessarily be slow to intervene in related matters which do not involve considerations of a purely planning and development nature.