High Court of Ireland Decisions

1. The Applicant was granted planning permission under Planning Authority Register ref: S/96/2333 on the 26th February, 1997 for the construction of a 220 KV overhead electricity line between existing 220 KV stations from the existing station at Aghada to the existing station at Rafeen in the County of Cork. Following a third party appeal An Bord Pleanala granted permission to the said development by decision dated 9th October, 1997 under An Bord Pleanala ref: PL 04 101966. The decision of An Bord Pleanala records in the first schedule thereto the reasons for the decision in the following terms:-


"Having regard to-

2. In the foregoing circumstances the Applicant seeks relief by way of judicial review of the Respondents decision to revoke and in summary relies upon the following grounds: -
 
1. There had been no change in circumstances relating to the proper planning and development of the area concerned as required by the Local Government (Planning and Development) Act, 1963 Section 30(2A).
 
2. The planning permission relates to the carrying out of works which works had been commenced at the date of the resolution and accordingly the power conferred on the Respondent by the Local Government (Planning and Development) Act, 1963 Section 30 having regard to Section 30(5) thereof was no longer exercisable.
 
3. That the Respondent failed to observe fair procedures in that the document mentioned at 1-4 above were considered by the Respondent without the Applicant being furnished with the same and afforded an opportunity to respond thereto and the Respondent failed to bring to the notice of the Applicant information the Respondent considered relevant to the revocation of the planning permission.
 
4. The Respondents decision was unreasonable and irrational.



THE LOCAL GOVERNMENT PLANNING AND DEVELOPMENT ACT, 1963 AS AMENDED SECTION 30 THEREOF.

3. The Local Government (Planning and Development) Act, 1963 as amended Section 30 thereof provides as follows:-
 
30. (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 on the occupier of the land affected and on any other person who in their opinion will be affected 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 and improvement of the amenities thereof), regard being had to the provisions of the development plan and the provisions of any special amenity order relating to the said area.
 
(2.A) 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.
 
(2.B) In case a planning authority pursuant to this section revoke or modify a permission, they shall specify in their 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 than one month after such service) specified in that behalf in the notice appeal (to An Bord Pleanala) against the Notice.
 
(4) Where an appeal is brought under this section against a notice, (An Bord Pleanala) may confirm the notice with or without modifications or annul the notice, and the provisions of sub-section (2) of this section shall apply subject to any necessary modifications in relation to the deciding of an appeal under this sub-section by (An Bord Pleanala) as they apply in relation to the making of a decision by a planning authority.
 
(5) The power conferred by this section to revoke or modify permission to develop land may be exercised -
 
(a) where the permission relates to the carrying out of works, at any time before those works have been commenced or, in the case of works which have been commenced and which, consequent on the making of a variation in the development plan, will contravene such plan at any time before those works have been completed.
 
(b) where the permission relates to a change of the use of any land, at any time before the change has taken place.

but the revocation or modification of permission for the carrying out of works shall not affect so much of the works as has been previously carried out.
 
(6) The provisions of Section 29 of this Act shall apply in relation to a notice under this section revoking permission to develop land or modifying any such permission by the imposition of conditions and which is confirmed on appeal (whether with or without modification), as they apply in relation to the refusal of an application for such permission or the grant of such an application subject to conditions, and in any such case the said Section 29 shall have effect subject to the following modifications:-
 
(1) In paragraph (c) of sub-section (1), for "in a case where permission to develop the land was granted as aforesaid subject to conditions" there shall be substituted "in a case where the permission was modified by the imposition of conditions":
 
(2) For paragraph (i) of the proviso to sub-section (4) there shall be substituted the following paragraph.-

 
(1) If it appears to (An Bord Pleanala) to be expedient so to do (it,) may in lieu of confirming the purchase notice, cancel the notice revoking the permission or, where the notice modified the permission by the imposition of conditions, revoke or amend those conditions so far as appears to (it) to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of the development in respect of which the permission was granted.
 
(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."

THE APPLICANT'S SUBMISSION THAT WORKS HAD BEEN CARRIED OUT.

4. In Fenchurch Properties Limited -v- Wexford County Council [1992] IR 268 Lynch J considered the meaning of "substantial works" in the Local Government (Planning and Development) Act, 1982 Section 4(1). The relevant phrase in that section reads:-

"Substantial works were carried out pursuant to such permission"

This phrase is not identical to the phrase in the Local Government (Planning and Development) Act, 1963 Section 30(5):-


"Where the permission relates to the carrying out of works, at any time before those works have been commenced."

In that case detailed measurements were taken of the distance between the heads of piles for the purposes of manufacturing floor slabs and steel works and the manufacture of these items by reference of such measurements was commenced. Once manufactured the floor slabs and steel works would be specific to the development. The Applicant claimed these items as works pursuant to the planning permission within the meaning of the 1982 Act Section 4 thereof. The Respondent took the view that the expenditure on floor slabs and steel work could not qualify as "works" within the meaning of Section 4 of the Act of 1982 upon the basis that the works had not been carried out on site and accordingly ought to be regarded as expenditure on the purchase of materials. It was there held that having regard to the definition of "works" in the Local Government (Planning and Development) Act, 1963 that the manufacturer of floor slabs and steel works constituted works being "an act or operation of construction" and as the works were unique to the development they were carried out pursuant to the planning permission in question. The same logic must apply here and accordingly I hold that the manufacture of site specific steel carried out on the instructions of the Applicant constitutes works for the purposes of the Local Government (Planning and Development) Act, Section 30(5) thereof and that the planning authority were accordingly in error.This error however will not of itself entitle the Applicant to judicial review of the Respondent's decision. In the State (Abenglen Properties Limited) -v- The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin [1984] IR 381 at 398 Henchy J said:-


"During the course of the argument the parties canvassed the question of whether or not Abenglen were entitled to seek an order of Mandamus when there was available an alternative remedy in the form of appeal which was not availed of and whether they ought to have sought an order of Certiorari (which is also an alternative remedy) to quash the decision which refused to grant planning approval. There is no doubt that the existence of an alternative remedy is not a bar to the making of an order of Certiorari. The court in it's discretion may refuse to make such an order when the alternative remedy has been invoked and is pending. However a court ought never to exercise it's discretion by refusing to quash a bad order when its continued existence is capable of producing damaging legal effects. Of course the discretion cannot in justice be exercised to produce or permit a punitive or damaging result to be visited upon an Applicant as a mark of the courts disapproval or displeasure when such result flows from or is dependant upon an order which is bad in law even where the Applicant (by his conduct or otherwise,) has contributed to the making of such an order. Such conduct can be dealt with in deciding the question of costs".

In the same case at page 393 O'Higgins J said that:-

"The question immediately arises as to the effect of the existence of a right to appeal or an alternative remedy on the exercise of the courts discretion. It is well settled that the existence of such right or remedy 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 has been 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".

Having regard to the foregoing statement of the law I purpose to proceed now to consider whether in addition to the error which I have found there has been a breach of natural justice.

5. In Fenchurch Properties Limited -v- Wexford County Council the Applicant was not made aware of the Respondents objection to the inclusion of expenditure on the manufacture of floor slabs and steel work as "works" for the purposes of the Local Government (Planning and Development) Act, 1982 Section 4(1). The Applicant there submitted that this constituted a breach of natural justice and in relation thereto Lynch J said the following:-

"A planning authority is not obliged to enter into a dialogue with an Applicant or to indicate in advance to an Applicant the planning authorities thinking or views before deciding on the application nor is the planning authority bound to conduct any sort of adversarial hearing of an application before deciding the matter. In the ordinary course of events the planning authority will receive an application, consider it and decide on it without giving any advance reasons."

He continued:-

"In the present case the Applicant to the knowledge of the Respondent relied on the manufacture of the floor slabs and steel work and the expenditure thereon to a significant extent. The Respondent was of the opinion that that factor could not be taken into account by the Respondent in deciding the application and the Applicant was unaware of the Respondents opinion which had not been communicated to it. Mrs Nixon did not mention the point at all at her meeting with Mr Murphy and Mr O'Shea on the 28th May, 1990 and as a result of this the Applicant said nothing to her about the point at all and merely pressed for an early extension of time so that it might resume work on the development.

I think that this was an unfortunate error on the part of Mrs Nixon and a report to the county manager of 28th May, 1990 specifically disallowed this item from consideration as "works" for the purposes of deciding whether substantial works have been' carried out or not. The combination of the exclusion of the manufacture of the floor slabs and steel work from consideration as "works" within Section 4 of the Act of 1982 which I have come to the conclusion was wrong in law on the uncontradicted evidence before me and the failure by the Respondent to give the Applicant an opportunity to deal with this point when it could have so easily have been given to the Applicant is in my view sufficient to constitute a breach of the rules of natural justice by omitting to take into account something that ought to have been taken into account and by failure to give an opportunity to the Applicant to address the point in question and therefore is sufficient to warrant the quashing of the Respondents decision of the 29th May, 1990."

I accept this as a correct statement of the law. However the rules of natural justice will vary with the circumstances of the particular case and what is appropriate in the case of an application pursuant to the Act of 1982 is not sufficient where a vested right such as the Applicant here enjoyed under the planning permission in question is to be revoked. In the circumstances of this case I am of opinion that the Applicant was entitled to have either sight of the material mentioned above at 1-4 as having been circulated to the Respondent or at the very least a sufficiently detailed statement of the contents thereof to enable it to make submissions in relation thereto and which submissions ought to have been considered by the Respondent. As Griffin J said in Gunn -v- Bord An Cholaiste Naisiunta Ealaine is Deartha [1992] IR 168 in relation to admittedly different circumstances but which I consider to be relevant here:-

"Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions."

The information furnished to the Applicant as to the matters which the Respondent proposed to take into account was far from sufficient and accordingly the Applicant was denied the opportunity to make appropriate submissions on matters which the Respondent considered of importance to its decision and on the evidence which the Respondent intended to consider for the purposes of that decision. Accordingly I hold that the Applicant was denied natural justice. My conclusion in this regard is consistent with that reached by O'Donovan J in Eircell Limited -v- The County Council of the County of Leitrim Unreported 29th October, 1999. In reaching my conclusion I am mindful of the difficulties which this will cause to a planning authority wishing to invoke the Local Government (Planning and Development) Act, 1963 Section 30 in that upon becoming aware of the intention of the planning authority to invoke the section the beneficiary of a planning permission could immediately carry out works and thereby bring into effect Section 30(5) and effectively deny the planning authority the possibility of invoking the Section. This defect in the drafting of the Section does not however justify denial of natural justice. Neither does the availability of an appeal. The difficulties are matters to be addressed by the legislature and not by the courts.


THE APPLICANT'S REMAINING GROUNDS.

6. Having come to the conclusion that the Respondent was wrong in law in deciding that works had not at the date of its decision been commenced and that there was a denial of natural justice it is not necessary for me to deal with the remaining grounds relied upon by the Applicant. In relation to the issue as to whether or not there had been a change in circumstances relating to the proper planning and development of the area this is a question peculiarly within the expertise of the Respondent and An Bord Pleanala and where possible it is appropriate that such questions should be left to their determination. However I would doubt if the documentation relied upon by the Council as to a substantial health risk could fairly be said to represent new evidence. Similarly there is nothing to suggest that the opinions relied upon in relation to the reliability and cost effectiveness of the underwater option and the respective costs of the underwater and overground options represents a change in circumstances or is other than a reopening of matters already determined by An Bord Pleanala on the appeal pursuant to which the planning permission PL 045101966 was granted. Likewise with regard to the ground that the decision was unreasonable and irrational: while much of the material considered by the Respondent at its meeting of the 22nd March, 1999 was available at the time of the decision of An Bord Pleanala to grant permission the weight if any to be attached to the additional material is peculiarly within the expertise of the Respondent and An Bord Pleanala. If these had been the only grounds available to and relied upon by the Applicant I would in my discretion have refused relief on the grounds of the availability of an appeal.