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Cite as: [2002] 2 ILRM 321, [2001] 4 IR 565, [2001] IEHC 141

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Byrne v. Fingal County Council [2001] IEHC 141 (2nd August, 2001)

THE HIGH COURT

JUDICIAL REVIEW

2001 434JR

BETWEEN

DEREK BYRNE

APPLICANT

AND

FINGAL COUNTY COUNCIL

RESPONDENT

JUDGMENT delivered by Mr. Justice McKechnie on the 2nd day of August, 2001 .

1. On the 28th June, 2001 the Applicant obtained leave from this Court (Kearns J.) to seek, by way of an application for Judicial Review, the reliefs therein sought and did so on the grounds therein specified. On the day following, an Injunction of an Interlocutory nature was granted which injunction restrained the Respondent from continuing with the impugned activity until the determination of the within proceedings. Thereafter, with the required documentation having been exchanged and following a full hearing of the application itself, this judgment, at least to High Court level, completes the litigation between the parties and does so within the time frame herein mentioned.

2. The reliefs sought, are numerous in number and wide-ranging in consequence, but in effect can be condensed as follows:-

A Declaration (a) that the proposed development at Meakstown and (b) the failure, in respect thereof, to consult with the local community, both individually and collectively, amount to a material contravention of the Respondent’s development plan;
A Declaration, that the purported exercise of the emergency procedures provided for, in Section 2 (9), and 2 (10), of the City and County Management (Amendment) Act, 1955 as amended by Section 27 of the Housing Act 1988

(a) amounts to an abuse of a discretion, and

(b) was invoked, pursued and carried out for an improper purpose;

(i) A Declaration that the proposed development does not constitute the provision of emergency accommodation and

(ii) A Declaration that, if section 2 (9) and 2 (10) of the aforesaid Act of 1955 as amended, permit the circumvention of Section 39 (1) of the Local Government (Planning and Development) Act, 1963 then, in such circumstances, the section constitutes an unwarranted and unlawful interference with the Applicant’s property rights and accordingly is unconstitutional.

3. The Respondent Council in its Statement of Opposition, denies each and all claims advanced on behalf of the Applicant and asserts that in the circumstances prevailing the Manager of its Council, was factually entitled to and legally justified in relying upon Section 2 of the 1955 Act.

4. At the commencement of this hearing and following submissions made by Counsel for the respective parties, I decided, in accordance with well established jurisprudence, that the Applicant’s claim, insofar as it challenged the constitutionality of the relevant provision of the 1955 Act, should not be embarked upon and in fact should be deferred until such time as the other issues had been determined. Depending on this Court’s decision on the statutory claims, a hearing of the constitutional issue may or may not then become necessary. See Cooke -v- Walsh [1984] IR 710, Murphy -v- Roche [1987] IR 106, McDaid -v- Sheehy [1991] 1 IR 1

5. The factual background to this case, not being in dispute, can be stated shortly as follows:-

The Applicant, for upwards of 20 years and more has been a resident of No. 4 Meakstown Cottages, Meakstown, in the County of Dublin. There are in all about 37 cottages at this location and for the purposes of these proceedings Mr. Byrne is both a nominee of and a representative for his neighbours.
Immediately adjacent there are certain lands which are registered on Folio No.'s 99948F and 11027F and which are in the ownership of Fingal County Council. Such cottages and such lands are accessed solely by the same cul de sac road.
For the past 11 years, approximately, there has been a halting site at Cruiserath, Mulhuddart, Co. Dublin which presently accommodates about 28 travelling families. Arising out of High Court proceedings, Dublin County Council gave an undertaking to the Supreme Court in 1990 that such accommodation was and would only be of a temporary nature. Since the Local Government (Dublin) Act, 1993 Fingal County Council is now the responsible local authority. Notwithstanding such undertaking this site was still in use, when in early 2001 a number of individuals instituted fresh proceedings against the Council, seeking I believe, a mandatory injunction directing the Respondent to remove the travelling families from this halting site and forthwith to cease, such user thereof. On several occasions this application has been adjourned and presently it stands listed for the 1st October of this year so that the trial judge can review the progress made by the Council on proposals submitted to him for a resolution of this matter.
These proposals, probably in the nature of an undertaking, and certainly in written form, were given to and lodged with the court on the 3rd of May and were to the effect that, the families at Cruiserath would be relocated. Of the total number then within the site, it was proposed that 11 families, within two months from the date thereof, would be transferred to a new site at Meakstown, this to be constructed on the lands of the Council as above mentioned.
Prior to this said 3rd day of May, the Manager by Order dated 21st March, 2001 approved of a recommendation for this proposed development, which recommendation recited that, through their spokesperson, Mr. Francie
O’ Donnell, 11 families presently located at Cruiserath had indicated their willingness to move to this new location. In addition the proposed accommodation, in the Order, was described as “emergency accommodation” with the Manager invoking Section 2 (9) and Section 2 (10) of the 1955 Act, as amended both by the 1988 Act and the Housing (Traveller Accommodation) Act 1998, as constituting the statutory basis for proceeding with the said works.
On the 21st May the first formal contact was made by the Council with the local community and it’s residents. At this meeting the Council outlined its plans for the construction of a 12 bay halting site and in a follow on letter, dated the 25th May, indicated that every effort would be made to alleviate the concerns of the local residents. These said residents were dissatisfied with this offer and indeed took serious objection to the placing of any halting site in the area so identified.
By further Orders of the County Manager dated the 25th May and the 14th June of this year a total expenditure of about £1.2m was committed to this project, and finally,
It should be noted that on the 14th June, and on the days following, regretfully confrontation took place between some of the residents and the contractor engaged to lay out this site. This resulted in the Council obtaining an injunction against such residents. In response, in their own right, the residents through Mr. Byrne then commenced the within Judicial Review proceedings.

6. In addition to considering this aforesaid brief outline of the factual background to this case it is necessary to record what the material provisions of the relevant development plan are as well as to note the Traveller Accommodation Programme adopted by the Council. However, as these matters will be further outlined later in this judgment, it is only necessary at this point to observe, that the site in question, at Meakstown, has not been identified in the Plan or in the Programme or the proceeding drafts thereof as being one, in respect of which the Council had any declared interest, either immediately or indeed even at any point within the lifetime of either document.

7. On these facts, and reasserting the basic proposition as to material contravention it was further submitted, firstly that in the absence of compliance with the relevant statutory procedures, namely those specified in Section 26 (3) of the 1963 Act, this proposed development was ultra vires the Development Plan, secondly that Section 2 (9) of the 1955 Act and Section 2 (10) thereof, as inserted by Section 27 of the Housing Act 1988, could not be used to circumvent either the aforesaid procedure or the mandatory provisions of Section 39 of the said Act of 1963, thirdly that if such provisions were so enabling then the aforesaid parts of Section 2 were repugnant to the Constitution of 1937, fourthly that the Respondent Council had not complied with the consultation process as set forth in paragraph 6.2.1 of the plan, which compliance in a meaningful way was a prerequisite to any such development and finally, that in any event, there was no true emergency within the meaning of Section 2 of the 1955 Act and accordingly this stated provision could not be used by the Manager in the manner suggested or proposed by him.

8. In reply Fingal County Council took issue with each of these claims and reaffirmed its principled position that once, in the opinion of the Manager, an emergency situation within Section 2 (10) existed, he was thus allowed and was therefore entitled to rely upon the said procedures as contained in Section 2 itself.

9. Under Section 4 (1)(b) of the 1963 Act, development, as defined in Section 3 thereof, if carried out by a County Council within its own district, attracts to it the status of being an exempt development. This exception to the requirement of having to obtain planning permission was always subservient to the provisions of Section 39 of the Act. S.S. (1) of this Section, prohibits in mandatory form, any development by a local authority which contravenes materially it’s own Development Plan. Planning permission however, can be granted for this type of development but only if the statutory procedure set forth in Section 26 (3), as inserted by Section 39 of the 1976 Act and as amended by Section 45 of the Local Government Act of 1991, is fully complied with. In determining what is or is not a material contravention the same standards apply to a local authority as would to a private developer seeking permission under Section 24. See O’Leary -v- Dublin County Council [1988] IR 150 and also the comments of Barron J. in Roughan and Others -v- Clare County Council H.C. U/R 18/12/1996. So in my view, it is quite clear that if the development, as proposed, should contravene materially the Development Plan, then, unless there is some statutory provision, whether within or outside the planning code, absolving that development from due and proper compliance, the provisions of Section 39 apply and accordingly if breached, injunctive relief should issue.

10. Section 2 of the 1955 Act, including the amendment caused by the insertion of subsection (10), does not in my opinion afford, in response, any comfort against this aforesaid proposition of law. Section 2 (1) of the Act enables the elected members of a local authority, by resolution, to direct their Manager, prior to performing a specified executive function, to inform them as to the manner in which he proposes to carry out that function. Subsection (3) excepts from this power, matters relating to officers or servants of that local authority. However, even where no such resolution is passed the Manager, under subsection (7) must inform the members before any works are undertaken (save for those of repair and maintenance) or before committing the authority to any expenditure, again with the exception last mentioned.

11. These parts of Section 2 as referred to, were designed I have no doubt, to facilitate the flow of information, with or without resolution, from the Manager to the elected members, by which method such members could be informed and kept so informed of matters of interest and concern to them in their representative position as Council members. The receipt of such information of course, has with it, the knowledge of what is proposed and therefore affords the members an opportunity of debate and discussion and, if need be in their view, action by resolution. Indeed where such information is so statutorily supplied the local authority, subject to exceptions not even mentioned in this case, may by resolution direct the Manager not to proceed with such works. See Section 3 of the Act and for the exceptions, see the words in parentheses, (which relate to works required by statute or Court Order). Of course, if unrestricted in all circumstances, such a mechanism, potentially and in fact, could be open to abuse and could disable the performance of the executive in quite a significant way. So whilst preserving the dominance of the information flow, the legislature, by including S.S. (9) exempted the Manager from these provisions but only where, in the Manager’s opinion an emergency situation exists, which situation calling for immediate action.

12. A new S.S. (10), added in 1988 “deemed an emergency situation” to exist in certain specified circumstances. In O’Reilly & Ors -v- O’Sullivan & Ors. U/R 26/02/97 the Supreme Court looked at this matter in some depth and it is a topic which I will further comment upon when I revert to the relevant issue later in this judgment. For present purposes it is sufficient to say that in my opinion, the amendment for it’s availability and use should be looked at, not as an entirely stand alone provision, but rather in conjunction with and as being related to the pre-existing S.S. (9). In any event, in my view it is beyond sustainable argument to suggest, that this section, in any of its parts or in its totality, effects, by way of amendment the continuing vitality of Section 39 or has, as its consequences, a reducing commitment to this section’s ongoing application.

13. In addition I do not believe that Section 2 or for that matter Section 3, either alone or jointly, confer on the Manager any new power in respect of works or expenditure which otherwise he does not have. The sections in this sense are not power creating. If this were otherwise, once an emergency situation in the conventional sense existed, or once it was deemed to exist, the Manager, logically, could by pass all other statutory provisions, whether positive or negative. This could not be the case. Rather it seems to me that when these sections apply, they have the effect of regulating the internal affairs of the local authority and of defining the relationship between the Manager and its members. Therefore, whilst in this case the Manager clearly has the power of Section 13 of the Housing Act 1988, nevertheless, if I was to hold that this proposed development contravened materially the development plan, I would have no hesitation in concluding that Section 2 of the 1955 act was irrelevant in determining the consequences of such a finding and that it had no effect on the provisions of Section 39. Accordingly, this view as expressed of the relevant section, immediately has the effect of rendering it unnecessary for this Court, to embark upon or make any ruling on the constitutional point. The issue does not arise.

14. The relevant county Development Plan places a zoning designation of “B” on the lands in question, the stated objective of which is “to protect and provide for the development of agriculture and rural amenity”. At paragraph 4.4.1 the use classes relating to such zoning are listed. Three categories are specified. Firstly, those uses which are acceptable, secondly those which are open for consideration and thirdly those not acceptable. In zone “B” lands the use classes acceptable include “Halting Site, Group Housing Scheme for Traveller Community”. Consequently this type of development is permitted in all areas of zone “B”. This of course includes the subject lands. As a result there cannot be in principle any question of this proposed development, in terms of land use, “per se” being anything other than acceptable within the provisions of the development plan. No issue, in the present case, in this regard, can therefore arise as to any alleged material contravention of the plan. It is of interest however to note, that with one exception only, namely high amenity, in every other designation the provision of halting sites and other associated services are within the use classes of either being acceptable or open for consideration.

15. The said plan, in text at paragraph 6.2.1 has specific reference to “Travelling People”, with the relevant portion reading as follows:-

1. “In fulfilling it’s statutory obligations, the Council will develop its programme of Travellers Halting Sites and other accommodation for the Traveller Community. Halting sites will be provided for people who request a permanent bay for their caravan(s). Purpose designed “Group Housing” sites will be provide for those who require accommodation in a dwelling amongst their community without a caravan.

2. The Council is committed to follow a consultation procedure with the Travelling Community and with the local community in the neighbourhood of any such proposed site. These sites will be designed to provide a high level of amenity and healthy living conditions for residents.

3. The initial phase of the provision of group/halting sites will be at the following locations:-

Balbriggan: Matt Lane,
Donabate: Turvey Avenue, between N1 and M1,
Swords: Stockhole,
Ballymun: St., Margaret’s Road,
Malahide: Site to be identified,
Howth: Two alternative sites to be provided,
Cappagh: St., Christophers, Cappagh: St. Marys, Cappagh
Scribblestown/Dunsink Lane : (Including car breaking and car parts trading area),
Navan Road: Extension of existing subject to a limit of ten houses,
New Road: Barn Lodge,
Ballycoolin: Extension of existing.

4. Additional locations for group housing/halting sites for travellers will be indicated as the programme is developed.”

16. On behalf of Mr. Byrne, it is claimed that the Council’s failure to adhere to the “consultation procedure”, set forth above, is, in itself a material contravention of the development plan and should attract a like sanction as if the use classes had been contravened. I cannot agree with this view. I do not believe that there is such a similarity in planning terms between both situations, though of course I readily accept that whilst zoning and uses are critical to the planner, consultation may be equally critical to the residents.

5. Whether a contravention is material is a matter of law (see McGuinness J. in Wicklow Heritage Trust Limited -v- Wicklow County Council H/C U/R 05/02/98) and is thus for the Courts’ to decide (see Tennyson -v- Corporation of Dun Laoghaire [1991] 2 IR 527 at 536). Whilst on principle a challenge, based on unreasonableness as per the judgment of Henchy J. in the Stardust case ( State (Keegan) -v- Stardust Compensation Tribunal [1986] IR 642) would always appear to be open, I see no reason again on principle, if the factual circumstances so permit as to why, in addition an ultra vires argument could not also be pursed.

17. In any event what amounts to a “contravention,” and beyond to a “material contravention” must, of course depend on individual circumstances and must be determined in accordance with established principles. See p. 5 of Mr. Justice Barron’s decision in Roughan, supra ,which decision I would respectfully endorse, with particular emphasis on the point that the objections advanced have to be grounded upon and considered in the context of planning law. An example of such a material contravention, vis-a-vis land use is to be found in O’ Leary and Others -v- Dublin County Council [1988] IR 150, vis-a-vis density in Tennyson, supra and vis-a-vis inconsistency with proper planning & development, though conforming with zoning objectives, in Wilkinson -v- Dublin County Council [1991] 1 ILRM 605. Notwithstanding the variety of examples available I have not been referred to any case where a failure to consult, without more, has been held to amount to a material contravention. Therefore any lack of consultation, if such be the case, should not in my view be treated in a manner which could have as its consequences a declaration that the plan had been materially contravened.

18. On every planning authority there rests a duty to make for its own administrative area a development plan (s). Subject to Ministerial extension that plan, at intervals not greater than 5 years, must be reviewed either by variation (alteration, addition or deletion) or by substitution with a new plan. See Section 20 of the Principal Act as amended by Section 43 (1)(e) and (f) of the 1976 Act. Each plan, which consists of a written statement and Plan, must incorporate certain development objectives (as to this meaning see Glencar Exploration Plc -v- Mayo County Council [1993] 2 IR 237), the nature of which differs depending on the locational remit of the plan or of a particular part thereof:- Section 19 (2). Discretionary objectives are no so dependent - Section 19 (3) and the 3rd Schedule of the 1963 Act as amended by addition. Sections 21 and 21 (A) as amended, set forth the manner and way in which a draft of a proposed plan or a proposed variation of a plan is procedurally progressed to ultimately becoming a plan in statutory form with statutory effect. These provision apply where a planning authority, having decided to embark upon a review and through its executive, if need be with outside assistance, having carried out the necessary surveys and collected the necessary data, has reached the stage, of having in existence a draft of such proposed review whether that be of an new plan or a variation of an existing plan. At this point in the process, if the authority wishes to proceed it must send copies of certain documents to prescribed authorities, and must cause notice of the preparation of the draft to be published in Iris Oifigiúil and at least in one newspaper circulating in area,

6. This notice, disregarding for present purposes proposed or in fact protected structures and also public rights of way, must state:

that a copy of the draft will be on public display for not less than three months,
that objections or representations received within that time will be (and of course, therefore must be) taken into consideration and
that any ratepayer making objection, can by way of request seek an opportunity to state his case in person before an appointee of the planning authority.

19. Having gone through this procedure the authority may decide that the draft of the proposed development should be amended. If that suggested amendment should involve a material alteration, then the provisions of Section 21 (A), enacted, at least in part response to Finn -v- Bray Urban District Council [1969] IR 169, must be adhered to. This means that a further notice must be published, a further display of the proposed amendment must take place for not less than one month and within that time any representations received must be taken into account. Then and only then, if they think fit, by reserved function, can the planning authority make the proposed plan or the proposed variation, with or without the proposed amendment or with such other amendment (not being an amendment providing for the preservation of a structure or public right of way) as, having regard to the particular circumstances, they consider appropriate. See the judgment of Mr. Justice Lardiner in Huntsgrove Developments Ltd. -v- Meath County Council [1994] 2 ILRM 36 where at p. 47 of the report, he identifies and discusses in considerable detail the various steps involved in carrying out a review of either type as is herein mentioned.

20. The making of a plan or a variation thereof, is only one aspect of the Planning and Development Code. In addition there are specific provisions dealing with other matters, for example, amenities, compensation ( now governed by the Local Government (Planning and Development) Act, 1990), Acquisition of Land etc. None of these are of any concern to us in this case but what is relevant is of course that major component of the legislation which deals with the “Control of Development”. Under Section 24 there is a general duty, for any development, not exempt or carried out before October 1964 or otherwise statutorily excused, to obtain planning permission and if one fails to so do he/she shall be guilty of a criminal offence as well as being exposed to several other methods of enforcement. So in Part IV of the Act, what might be described as private development is duly regulated. As part of this control a planning authority cannot decide to grant a permission which contravenes materially its development plan without complying with the statutory requirements of Section 26 (3) - see paragraph 9 above. If so minded to grant such a permission, a notice of intention must be published, any objections or representations received within 21 days must be duly considered and the Authority, by not less than three quarters of the total number of its members, (fractions being disregarded) must pass a resolution in favour of the permission being granted. In addition within its own functional area a local authority cannot affect any development which contravenes materially its own development plan. So whether it is the making of a plan or a review thereof or a proposed material alteration to that review, or whether the proposed development would contravene materially an existing plan, there is available to each crucial player a mechanism by which his duty, responsibility or interest, as the case may be, can be either aired and considered or advanced and protected.

21. In the preparation of a draft, it is the executive branch of the planning authority, which by experience, is or should be knowledgeable of the present needs and which by information gathered is or should be in a position to formulate objectives and thus plan for the future. In publishing such a draft and in inviting objections and representations, the public, both as a body politic and in its individual parts, whether it be prescribed bodies or owners or developers, or persons with general or specific concerns, all know without distinction of interest or influence, what is being proposed, all are being offered and afforded an opportunity of making their case and all are in receipt of a statutory assurance that their views will meaningfully be taken into account. In considering whether to amend its draft, and if so to what extent, or in considering whether to make the plan or a variation thereof the elected members are obliged to participate. In having and exercising a regulatory function it is the appropriate Minister. In supervising the fairness of procedures and the due exercise of power and function it is the Courts. Though all of these roles are, and of necessity have to be different, each play a pivotal part in the overall arrangement. When the process centres not on the plan but on an individual application for planning permission, with or without any suggestion of a material contravention, safeguards to like effect exist and apply. In particular those members of the public who have a genuine interest, in whatever way, have an opportunity of being heard and if availed of, have the knowledge, that backed by the Oireachtas their representations will be duly considered. Such integration, in my view, of speaker and listener is an indispensable feature of the code. When Mr. Justice Kenny in Central Dublin Development Association -v- The Attorney General [1975] 109 ILTR 69, at p. 90 said

“I do not think that the giving of power to a planning authority to make a development plan after they have considered and heard objections to the draft is an unjust attack on property rights”, (emphasis added)

did he ever envisage I wonder that a proposed amendment to the draft of the County Dublin Development Plan 1991, in relation to lands at Robswalls, Malahide would attract almost 8,500 representations. See Malahide Community Council -v- Fingal County Council [1977] 3 I.R. 303. Such is the importance I believe of that right and of such process.

22. The rationale behind the structure of this legislation was considered by Mrs. Justice McGuinness, then a member of the High Court, in Blessington Heritage Trust Limited -v- Wicklow County Council and Others H/C U.R.: 21/01/1998. In the section dealing with the law and conclusions she said the following:

“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 the said 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 with is vitally affected both by overall development plans and by individual planning decisions. The rights of all of 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”.

7. Later she continued

“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 interests 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 control to grant 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 Pleaneala 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 one another and form part of a coherent whole. I would respectfully agree with this overview and only for the purposes of this case emphasise the importance of the role available to and involving members of the public”.

23. The above observations which I respectfully agree with are as was intended, general in nature and non specific as to development plans. However, there has also been judicial comment particular to the plan itself. In Finn -v- Bray Urban District Council, Supra, at p. 17 of the report Mr. Justice Butler said

“I take it as clear that one of the objects of a development plan is to control and regulate the user and development of property by indicating, inter alia, the lines on which development permissions will be granted, and on which prohibitions on development and user will be imposed under other parts of the Act. As such, it affects property and may adversely affect the value of a citizens estate in, and enjoyment of property.”

24. Though in the twenty years which followed a number of similar and further remarks were made, about the development plan, it was not until 1989, in a most powerful and impressioned way that the effect and consequences of the statutory plan were so strikingly stated. McCarthy J., in Attorney General (McGarry) -v- Sligo County Council [1989] ILRM 768 , at p. 772 said

“The plan is a statement of objectives: it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism, and, if thought proper, objection. When adopted it forms and environmental contract between the planning authority, the council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not affect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not sherk from informing those objectives on itself. He would be further assured by the requirement of consultation with important and highly qualified independent bodies such as the national monuments advisory council, An Taisce etc.: the motto of the City of Dublin (obdienta civium urbis felicitas) joined with the statutory duty of the Council under the Act would have led to the even handed administration of the planning code”.

25. This theme was again taken up by Carney J in Keogh -v- Galway County Council (No. 1) [1995] 1 ILRM 141, a decision which the learned trial judge, though urged to reconsider, refused to so do, see McCann -v- Galway Corporation H/C U/R 15/11/1994. In the 1991 Borough Development Plan, Galway Corporation identified as one of its specific objectives “to provide halting sites for travellers at Tuam Road, Headford Road, Doughiska and along the access road to Silver Strand”. There was no mention of Bishop’s Field, a field which the Corporation subsequently proposed should be used for the construction of a halting site. The local residents objected claiming that such a use would be ultra vires the development plan. In response the planning authority sought refuge in paragraph 18.2 of the plan which read

“Particular objectives may be modified or deleted, and new works which become necessary and are not included as specific objectives, may be initiated depending on the availability of finance and the sanctioning of schemes or works by central government”

26. The learned trial judge was less than impressed with this defence. Drawing from Finn and McGarry he went on, at p.146 and 147 of the report to express in independent language his own view of the situation. He said

“It is central to the scheme of the Act that a citizen is to be given notice of a development which might affect him in a substantial way and have the opportunity of stating his case in relation to what is projected. The provision of halting sites is a matter of clear interests to adjoining householders and is also frequently a matter of great concern and controversy (p. 146 ........)”

I am satisfied from the scheme of the Act of 1963 that Galway Corporation having put its citizenry on notice in their development plan when it was in its draft stage that halting sites were proposed for four specific locations cannot now develop one at the Bishop’s Field without engaging in the appropriate consultation process with the community and in particular those immediately affected in the neighbourhood. I find that the respondent’s present plans seek to bypass the mandatory consultation process provided for in the Act of 1963 and materially contravene their own development plan.

The Applicants in the instant case were entitled by virtue of the four specific locations set out in paragraph 3.9 of the development plan to assume that they were fully on notice of the Respondents intentions as regards halting sites or hard stands (p. 147 .........)”

8. Accordingly the resulting Order prohibited the proposed development..

27. With these statements of the law as set forth in Finn, McGarry and Keogh

9. I would entirely agree. In my opinion, a development plan, founded upon and justified by the common good and answerable to public confidence, is a representation in solemn form, binding on all affected or touched by it, that the planning authority will discharge its statutory functions strictly in accordance with the published plan. This implementation will be carried out openly and transparently, without preference or favour, discrimination or prejudice. By so doing and by working the plan as the law dictates, the underlying justification for its existence is satisfied and those affected, many aversely, must abide the result. They must suffer the pain, undergo the loss and concede to the public good.

28. Prior to dealing with the relevant portion of the plan as is material to this case, it would be convenient to remind ourselves of the approach which the courts have adopted in the interpretation of planning documents. In Re X.J.S. Investments Limited [1986] IR 750, McCarthy J. at p. 756 said

“Certain principles may be stated in respect of the true construction of planning documents:-

To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draughtsmen and inviting the accepted cannons of construction applicable to such material.
They are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning”

10. Though at issue in that case was the interpretation of a refusal to grant permission nonetheless in the passage quoted it is not suggested that a distinction should be made between that type and other types of planning documents. In Tennyson’s case Barr J., applied the above principles when construing the relevant plan of Dun Laoghaire Corporation. Accordingly, there being nothing to suggest that some other meaning ought to be given to the relevant section under review in this case I would propose to apply the aforesaid test in the interpretation of the material part thereof.

29. As Barr J. did in Tennyson, this Court in my view should therefore ask itself, what would a reasonably intelligent person, having no particular expertise in law or town planning, make of paragraph 6.2.1 of the plan and that part of section 4 which deals with use classes within the zoning designation B which these lands have? What would he or she learn from this plan and what conclusions could such a person reasonably adduce therefrom? In the first instance I do not believe that such a person, adopting this method of interpretation would make a distinction within halting sites as being either temporary or permanent in nature. In my view the first sentence of paragraph 6.2.1, though general in wording is, in its commitment, quite specific as to how the local authority will fulfil its statutory functions regarding the travelling community. It will do so by developing its traveller programme. The second sentence is specific as to halting sites with the sentence immediately following being specific as to group housing, it being noted that the provision of both halting sites and group housing is unquestionably part of the traveller accommodation programme. The use of the phrase “who request a permanent bay”, in the second sentence should not, of itself and in isolation, be read as meaning that temporary sites, as defined by the Council are not covered by and in effect are to be exempt from the consultation procedure which is set forth in the paragraph immediately following. If this was its true interpretation, as was submitted, it would have the effect of compelling this court to interpret “halting site” as used in section 4, in a like manner so that similar words would harmonise and co-exist, there being no contra indicator suggestive of different meanings. It is unnecessary however to contemplate the consequences of such an interpretation, which if valid, could, perhaps afford some comfort to the Council in this case but on the other hand could create serious implications for the legal sustainability of the very plan itself, or at least for part of it. Knowing as one does from the background history of this case, that temporary, by historical precedent, can traverse a decade and more, and knowing that the effect of providing a halting site, even one truly temporary in nature can have similar consequences to a permanent site, indeed because of its supposed limit in duration it may have more, it would seem that a policy of applying a consultative process to one group of residence and entirely bypassing that process with another group could be open to serious challenge. However, being of the view that there is no justification in giving, as was suggested, a restrictive interpretation to halting sites in this paragraph of the plan, I am of the opinion that the provisions thereof apply, without distinction, to all halting sites established or intended to be established by the Council as part of the statutory obligation. This conclusion is based on my reading of the relevant plan and is not intended to reflect on matters of policy or policy considerations.

30. From the above it seems to me that three questions immediately arise. These are as follows:-

(a) Whether or not there has been a breach of the commitment to follow the consultation procedure outlined in paragraph 6.2.1 of the plan and if so what are the consequences thereof,

(b) Whether, given

(i) The Council’s declared intention of fulfilling its statutory obligations to the travelling people through implementing its Traveller Programme,

(ii) The listing in its plan by name and location, of sites both for halting and group housing accommodation, which sites would form the initial phase of such implementation,

(iii) The absence of the subject site being named in the plan or otherwise being identified, even potentially, as a possible site and,

(iv) The fact that in neither the Draft Traveller Accommodation Programme presented on the 28th October 1999 or in the programme as finally adopted by the Council on the 28th March 2000, is there any mention of or any warning directly or indirectly that the subject site might be considered as part thereof, it is within the power of the Council to proceed with its intended works even assuming the consultation procedure has been adhered to, and thirdly

31. As to the first issue, I have no doubt but that when construing the relevant part of the plan, as per the judgment in X.J.S. Investment Limited , and following Finn, McGarry, Tennyson and Keogh the owners and occupiers of land and the residents within this district were entitled to assume (and demand, if need be even enforce), that the Council would honour the unconditional and unambiguous undertaking and commitment given by it in the said plan. They were entitled to believe that if a site in their neighbourhood, otherwise legally available, became a proposed site for the purposes of the Council’s programme they would be involved in a process of consultation with the relevant members of its executive branch. This process as envisaged must in my view be real and meaningful and must involve an opportunity of making representations. If availed of such representations must be taken into account, this in a bona fide way and prior to any final or concluded decision being arrived at. If it were otherwise such a process would be empty of value, hollow in substance and devoid of credibility.

32. What actually happened in this case is not in any real sense in dispute though the available evidence is somewhat thin on detail. In the Order made by the Manager on the 21st March of this year it is recited that “Through their spokesperson Mr. Francie O’Donnell, the families have indicated their willingness to move to ......... Meakstown, Dubber Cross, Co. Dublin”. Secondly by a document in the Wilkinson proceedings headed “Schedule”, and presented to the High Court on the 3rd May, it was indicated that 11 families from the Cruiserath site would be moved to Meakstown within two months from that date. Thirdly, it is agreed that the first formal meeting between the Council and the local community took place on the 21st May, which meeting was followed by a letter dated the 25th wherein the Council’s intention to carry out these works was set forth. On the same day a further Order from the Manager permitted the Council an expenditure of approximately £175,000 on this project with a further sum of almost £900,000 being assigned to these works on the 14th June. Both of these Orders were made when the consultative process with the residence stood as is described herein.

33. In my opinion it is clear that by the 21st March and probably a good deal earlier a considerable amount of contact had taken place with the travelling community and this had resulted in their willingness to move. By or on the same date it was equally clear that the Manager had approved of the proposed works and in particular had authorised an expenditure of well in excess of £1 million. On the 3rd of May in order to resolve Wilkinson, the Council made the aforesaid proposal to the High Court. So by the 21st of that month established plans were in existence to cover all aspects of this proposed development. How therefore could it be suggested that the single meeting of that date was in any way a fulfilment of the obligation not only to consult but “to follow a consultation procedure” with the local community. A once off meeting, depending on circumstances, could conceivably satisfy this requirement but most certainly could not do so in this case. Moreover I am satisfied on the evidence that in attending this meeting the Council was not doing so in the context of engaging the local community in dialogue but rather it’s purpose was to inform the community of its plan and to convey its intention to implement it. This I believe is borne out by the letter of the 25th of May and by the Respondent’s onward drive, in considerable haste, to implement this plan and indeed underpin that implementation by Orders of this Court. I am therefore of the view that Fingal County Council did not comply with its own development plan in that it failed to undertake the commitment of engaging in the consultative process as set forth at paragraph 6.2.1 thereof. This commitment, on any reading of the relevant passage, and in order to have any value must be performed prior to proposals being finalised with regard to any given site. In this way it could be said to be a condition precedent to the finality of such proposals. As the interchange between the residents and the Council in this case did not comply with the aforesaid requirement, it must follow that these intended works cannot proceed in the absence of this commitment being satisfied. 34. The views which I have expressed on the above issue are sufficient to determine this case and accordingly it is not strictly necessary to go on and consider the other matters arising. In addition, in relation to Issue No. 2 it would also I think be unwise to do so as it raises several matters, distinct from the first question, which have not been fully argued and which could have consequences not covered by the submissions. In relation to the third point, as mentioned at paragraph 12 above, Keane J as he then was, in delivering the Judgement of the Supreme Court in the O’Reilly case , dealt with both subsections 2 (9) and (10) of the 1955 Act. With regard to the subsection first mentioned the phrase “an emergency situation”, was said to exist where a set of circumstances arose suddenly and unexpectedly and which required in the terms of this section “immediate action”. Or as it was put “an emergency” in the conventional sense. The new subsection (10) was different. It deemed “an emergency situation”, to exist when in the opinion of the Manager certain circumstances existed. At page 21 of the Court’s Judgement the now Chief Justice said

“If that precondition is met, i.e. if the Manager has formed a bona fide opinion to that effect “an emergency situation calling for immediate action”, is deemed to exist, irrespective of whether it is an emergency situation in the conventional sense of one that is sudden and unexpected. If the Manager, having formed such an opinion, was still precluded from dealing “forthwith”, with such a situation without regard to the provisions of Section 2 of the 1955 Act, it is difficult to see what the purpose of the latter section was. It is clear that it was intended to give an artificial and extended meaning to the expression “emergency situation calling for immediate action”, which would otherwise be confined to emergencies in the conventional sense, i.e. situations which arose suddenly and unexpectedly.

The Manager’s powers under this provision, accordingly, were not restricted to situations that were “emergencies” in that sense. If he were bona fide of the view that, as a result of a combination of factors, some of which had been in existence for a number of years, the provision of a halting site at this location was required as a matter of urgency to provide a reasonable standard of accommodation for the travelling families involved, in the interest of their personal health and safety and of public health generally, the provisions of Section 2 (9) of the 1955 Act automatically became operative. It is quite clear that he had formed such an opinion and that, accordingly, his invocation of the relevant powers was not vitiated by the absence of an “ emergency situation ” in the conventional sense.

35. This Judgment is of course one which I fully respect. However, in the present case the emerging debate raised issues, which, perhaps were not fully within the scope of the judgement, such as to whether subsection (10) could still be invoked where the reasons for the “deemed emergency”, resulted from or involved statutory neglect on the part of a local authority. Add to that a passage of several years and the adoption of a defensive self interest position in Court proceedings can it be said that these very matters and their obvious and foreseeable consequences can form the very basis for the immediacy required under subsection (10)? Though this matter was raised it did not form a significant part of the Applicant’s case and accordingly given my views on the principle issue I would prefer not to express my opinion on this point.