High Court of Ireland Decisions

1. In this application the Applicant seeks an Order quashing the decision of the Respondent Council, to grant planning permission sought by the Notice Party Eircell Limited for the retention of a support pole and antennae for mobile communications, which development is located at the Corporation Lands, Belturbet in the County of Cavan. The Applicant has sworn an affidavit in which he describes himself as an unemployed factory worker of 11 Fay Crescent, Belturbet, in the County of Cavan and he says that he lives in the town of Belturbet which is a small town located in the West of County Cavan. He says it is an extremely attractive town located on the banks of the river Erne. He indicates that he together with a number of other local residents are extremely concerned about the decision of the Respondent Council.

2. The Applicant says that in or about the month of February, 1999, the Respondent constructed a telecommunications mast at Corporation Lands, Belturbet, in the County of Cavan, which mast is located immediately beside the telephone exchange. He says that the mast itself is particularly unsightly and ugly and it is totally inconsistent with the character of the town and is of major detrimental impact to the visual amenity of the area. He says that it is of great concern that the mast is located in the town centre. He says that close to the site of the mast there is a number of residences and a number of businesses and he says that people living beside this mast are very concerned as he is about the affect on public health. He says that it is a cause of stress to people living in the area because of the possible health risk which will emanate from the operation of the mast. He says further that across the road from the mast is St. Bricin’s Technical School and he says there are three other schools in the immediate vicinity.

3. The Applicant says that he lives very close to the mast and that it is visible from his house and that he is very concerned about its visual impact and about the possible health implications which arise from the operation of the mast. He says that this concern partly relates from the fact that he suffers from epilepsy which he believes is a condition that may be affected by radiation emissions. The Applicant complains that the Respondent (in this regard it appears that he intends to mean the Notice Party) constructed this mast without planning permission on the site and commenced the use of the structure without obtaining the necessary grant of planning permission pursuant to the Local Government (Planning and Development) Act, 1963.

4. The Applicant says that the construction of the mast came as a complete surprise to him and to other residents of Belturbet because approximately a year previously there had been a meeting between the local community and a representatives from Eircell Limited and he says that at that meeting there was an undertaking given by the Respondent that any mast to be constructed would be constructed far away from the town and if possible at a remote rural location where it could not have any effect on the amenities of adjoining residences, on schools, or on facilities which were used by the public on a regular basis. The Applicant complains that despite this commitment the Respondent (and in this regard again I believe this is intended to refer Eircell Limited the Notice Party), made an application to retain the structure by planning applications submitted on the 5th of March, 1999. The Applicant says that by virtue of the commitments given and by virtue of the public notice which was published which provided for an application to “ retain support poles and antennae ” the local community and he in particular were not aware that this was an application to retain a telecommunications mast and he says that he assumed that the application was part of the conventional telephone exchange facility which was located in the area, as there was no reference in the application notice to mobile telecommunications equipment. The Applicant says that it was not until after the appeal period had expired that the local community became aware of what had been applied for and what had been granted by Cavan County Council and he says that at this stage it was too late to lodge an Appeal against the decision.

5. The Applicant says that the application for planning permission was lodged on the 5th of March, 1999, and he says that a report was prepared by the Planning Office dated the 24th of March, 1999, some two and half weeks after the receipt of the application and he says that the decision to grant was made on the 31st of March, 1999, which is approximately three weeks after the receipt of the application. The Applicant says that he and his neighbours and other residents of Belturbet were totally unaware that the application had been submitted and had not an opportunity to make a submission to the County Council with regard to their fears relating to the proposed development and in particular to the impact which the development would have on the visual amenity of the town and the public health of the area and on schools and residences which are located close by.

6. The Applicant says that one of the reasons why he and others were not as vigilant as they should have been was that earlier in the year they had a meeting with Eircell which had given an assurance at the time that no application would be made for the construction of any mobile telecommunications structure in the town of Belturbet and on the basis of that assurance he says that local people were satisfied that no telecommunication structures would be applied for or located in the town. The Applicant says that notwithstanding the assurance given to the local community the application by the Notice Party was lodge on the 5th of March, 1999.

7. He says that the development is located in an extremely sensitive site and is located approximately 25 meters from the nearest school. He says that, by virtue of the concerns which local people had with regard to the impact of such developments and the statutory scheme of which such developments are to be assessed, they are reasonably sure that no mast could be granted permission within the town itself and certainly no mast could be granted permission in the immediate vicinity of the school. He says that this expressly contravened the requirements issued by the Department of the Environment to Planning Authorities which set out the method for considering applications made for such masts.

8. The Applicant says that the location of the mast in this case contravened two fundamental requirements in that the mast is located within the town itself and is located approximately 25 metres from the school. The Applicant further says that the Planning Authorities failed to address themselves to the critical approach which the guidelines require the Planning Authorities to adopt as conditions precedent to the consideration of such applications and in particular paragraph 4.3 of guidelines issued by the Department of the Environment in relation to telecommunications which set out the locations for such masts should not generally ever be allowed to be located. The Applicant refers to paragraph 4.3 wherein it is stated inter alia that “only as a last resort should freestanding masts be located within or in the immediate surrounds of smaller towns or villages or beside schools” .

9. In light of this paragraph it is submitted by the Applicant that it is a fundamental requirement that local authorities consider whether there is any other site which can be considered for such masts in a general area outside the town and village before they consider the site of the proposed development and only in circumstances were they are satisfied that no such site is available can they consider an application for such masts within the town itself.

10. The Applicant says that he has examined the planning files for the application. He says there is no reference to consideration of other possible sites outside the town and to the elimination of all other sites within the overall area such as would satisfy this requirement and equally there is no evidence submitted by the developer to the effect that this is the only site which is now available having regard to the requirements of that paragraph Section 4.3 of the guidelines. In this regard the Applicant says that this is a fundamental defect which the Notice Party failed to submit and the Planning Authority failed to consider before the application was determined. In this context the Applicant continues by asserting that the Planning Authority was wrong in failing to have regard to this requirement and in failing to have considered whether in fact there were other sites which were not within the town and village that the mast could be located on and he says that in those circumstances the whole approach adopted by the Respondent was wrong, was contrary to the guidelines issued by the Department which he says he is advised the Planning Authority must have regard to. The Applicant refers to a further portion of paragraph 4.3 of the guidelines which states

11. The Applicant contends that the guidelines make it clear that it is a fundamental condition precedent that such masts should not be located in towns or villages and secondly if such masts must be located because there is no other site available then only as a last resort should they be located beside schools or other residences. The Applicant says that the mast in question is located immediately adjoining the local vocational school and he says that this issue was not considered by the Respondent and a clear requirement of the guidelines with regard to the unsuitability of such site for a telecommunications structure was not adverted to in the report of the Planning Office and he further asserts that nowhere in the report is the clear requirement that such masts should not be located near a school and only as a very last resort, referred to.

12. The Applicant further complains that there is a reference to the school in the Planning Report but he says that the inter-relationship between the proximity of the mast to the school and the location of the mast within an existing urban area was never considered. The Applicant says that had the requirement of the guidelines been properly considered then the Planning Authority could only have come to the conclusion that the proposed site is unsuitable and that planning permission for the proposed development should have been refused. The Applicant says that by failing to properly consider the site in the context of the guidelines and to apply the requirements of the guidelines to the application that the Respondent Council made a fundamental error of law and in this regard he says he is advised that its determination is fundamentally invalid, ultra vires and void. The Applicant further contends that if the guidelines which set out the standards had not been issued by the Department of the Environment that the decision of the Respondent Council to locate a mast as approximately 25 metres from the school where children are being educated and will be exposed to the mast is so unreasonable that it offends plain reason and common sense.

13. The Applicant further contends that this position is copperfastened by the clear text of the guidelines for Planning Authorities which indicate that a critical issue for Planning Authorities in considering planning application for such is that they avoid schools. The Applicant says that his concern relates not only to the fact that the proposed development offends the guidelines but because he is concerned that it may have a very serious impact on the health and welfare of the residents of the town and in particular the young people attending the school. The Applicant further complains that the Planning Authority acted with unseemly haste in determining the application and did not afford any opportunity to make submissions and he says it would normally be the case that such applications would take at least six weeks to be considered and that if the requirements of the guidelines issued by the Department of the Environment had been adhered to it would have taken considerably longer, that there would have been a duty on the Respondent’s to enquire of the Developer whether this was the only site and whether the last resort principles referred to in the guidelines should be brought into force.

14. The Applicant says that had the correct approach been taken then the application could not have been determined within the period aforesaid and he says that the local people would have had an opportunity to make submissions with regard to the proposed development which by virtue of the procedure adopted by the Respondent Council, the local community had no opportunity of making.

15. The Applicant further complains that the plans and particulars accompanying the planning application fail to comply with the Planning Regulations of 1994 and in particular the maps and drawings do not comply with Article 23 of the Regulations and that the application is, as a result, fundamentally flawed and invalid. In conclusion the Applicant contends that the decision is based on a fundamental misreading of the requirements of the Department of the Environment to which the Planning Authority is bound to have regard. He complains that it failed to comply with the requirements of the 1991 Local Government Act and the requirements of the Local Government (Planning and Development) Acts, 1963 to 1998, and the Regulations made thereunder.

16. Mr. Seamus Neely an Administrative Officer of the Respondent Council has sworn Affidavit on its behalf. Mr. Neely refers to the nature of the development and, with regard to the Applicant, he says that the distance between his residence and the development in question is approximately 200 metres. Mr. Neely says that the first development in question came to the notice of Respondent was by way of a notice published in the Irish Independent on Wednesday 3rd of March, 1999, in which Eircell Limited gave public notice of an application being made by it to the Respondent Council for planning permission to retain a support pole and antenna situated behind the automatic telephone exchange (Townland, Corporation lands,; Belturbet, County Cavan). Mr. Neely says that the Respondent Council received from the Notice Party an application for permission to retain the support pole and antenna for mobile communications at the Corporation Lands and that the application included a four page letter from the Notice Party, a copy of the completed Planning Application form, two copies of the newspaper notice published in the Irish Independent on the 3rd of March 1999, the relevant fees, two copies of the site notice stated to have been erected at the position marked on the site plan and elevation (Belturbet 1), four copies of an elevation (Belturbet 2), and four copies of a site location map.

17. It is further stated by Mr. Neely that notification of receipt by the Respondent Council of the aforesaid planning permission application was published in the Anglo Celt in their issue dated 11th of March, 1999. Mr. Neely has referred to both the Departmental guidelines and to the report of the Planning Officer and states that the County Manager decided to grant the planning permission sought subject to seven conditions set out in a schedule attached to the decision in respect of the development in question and directed notification of this decision to issue forthwith and that notification of the grant permission to issue at the expiration at the appropriate period, provided no appeal had been taken against this decision. Mr. Neely says that notification of the Decision to Grant issued to the Notice Party by way of notice dated the 1st of April, 1999. Mr. Neely points out that there was no notification of objection by any party communicated to the Respondent Council and consequently no notification of the Respondent’s decision dated the 31st of March, 1999 arose to be made to any party other than to Eircell Limited. Mr. Neely further points out that no appeal of the Council’s decision was received from the Notice Party Eircell Limited or from any other party. Mr. Neely points out that the notification of intention the grant on 31st of March, 1999, resulted in the issue to Eircell Limited of the grant by way of a notice dated the 27th of May, 1999.

18. Based upon these facts the following submissions are made by Mr. Neely:-

19. Mr. Neely further takes issue with the assertion that the Respondent failed to have proper regard to all matters and aspects appropriate to be considered by it as planning authority.

20. On behalf of the Respondent Council it is submitted that the appeal to this Court is out of time. It is submitted that insofar as the managers order was made on the 31st day of March, 1999, and notice was given to Eircell the Notice Party on the 1st of April, 1999, that the appeal period expired two months later that is on the 31st of May, 1999. The grant of permission took place on the 27th day of May, 1999, the notice of appeal was apparently received by Cavan County Council and by Eircell Limited on the 26th day of July, 1999.

21. Subsection 3B provides inter alia ;

22. It is submitted that in the instant case the date on which the decision was given was the 31st day of March, 1999, when the manager’s order was made. Alternatively it is submitted that the date on which the decision was given must be construed as being on the 1st of April, 1999, when notification was given to Eircell. Particular reliance is placed in this regard on the provisions of Section 26 of the Act of 1963 as amended. Reliance is placed in this regard upon the decision of Quirke J in the case of Keelgrove Properties Limited v An Bord Pleanála and Dublin Corporation, Shelbourne Development Limited and An Taisce (unreported High Court 27th August 1999). In this case Quirke J held that the date upon which a planning decision is “ given” within the meaning of subsection (3B) (a) (i) of the 1963 Act, as amended is the date stated upon the order which gives effect to the decision unless the contrary can be proved. This was stated in the context of a decision of the elected members of the Council. In this case Quirke J contrasted the wording of the Act insofar as reference is made to the date upon which a decision is ‘ given’ and the ‘ notification’ of that decision.

23. It is submitted by Counsel that there remains the essential question as to when the decision in the instant case was made. It is submitted that section 82 of the Act contemplates Judicial Review against the ‘ decision’ as opposed to the ‘ grant’. It is submitted that under Section 26, a Planning Authority may decide to grant permission or may decide to refuse to grant planning permission. A third type of decision arises under the provision of Section 26 (4) (a), where in default of a notice been given to an Applicant of a decision of a Planning Authority within the appropriate period, a decision by the Planning Authority to grant the permission or approval shall be regarded as having been given on the last day of that period. Furthermore by reference to Section 26 (5) of the Act an appeal may be taken to An Bord Pleanála against a decision of a Planning Authority under the section. It is to be noted the word ‘ decision’ once more appears. In this regard it has been noted that in paragraph (f) of the subsection it is stated as follows:-

24. It is submitted by Counsel that prior to the passing of the 1992 Act that it used to be the position that objectors had a period of one month calculated from the giving of a decision while in the case of an Applicant for planning permission the appropriate period commenced from the date of notification to the Applicant of the decision of the Planning Authority. It is submitted that prior to the passing of the 1992 Act, it was contemplated that an Applicant be notified of a decision already given. In this regard it is submitted by Counsel that the words ‘ given’ and ‘ notification’ cannot be treated as synonymous.

25. Further reference is made to the provisions of Section 26, subsection 8 of the Act of 1963 as amended where the terms ‘ decision’ and “ the notification of such decision ” appear such as to suggest that they are not necessarily synonymous. Furthermore, reference is made to subsection 9 of the section where a distinction appears between a decision of a Planning Authority under the section to grant a permission or approval and the actual grant. It will be seen from the subsection that in the case of an appeal the grant will not issue until after the determination of the appeal procedure.

26. With regard to Section 26 subsection 9 it is submitted that in the instant case the grant of planning permission in question issued on the 27th day of May, 1999. It is submitted that the giving of the decision was synonymous with the making of a decision by the Planning Authority. Without prejudice the forgoing is submitted that if the day of communication of the decision is of relevance then the appropriate date is the 1st of April, 1999. It is submitted that the statutory scheme does not permit of any other date than the date of the decision or, in its absence, the date of the notification of the decision to Eircell Limited on the 1st of April, 1999. It is submitted that when one has regard to Section 82 that there appears in the Section to be a deliberate choice of words insofar as the word ‘ decision’ appears rather than ‘ grant’ and these words must be contrasted and this contrast also appears in the terms of Section 26 itself.

27. Further reference is made to the decision of the Supreme Court in the case of K.S.K Enterprises Limited v An Bord Pleanála [1994] 2 I.R. 128 where the Supreme Court referred to the purpose of the provisions of Section 82 subsection (3B) (a) of the Act of 1963 being to confine the possibility of Judicial Review in challenging or impugning a planning decision either by a Planning Authority or An Bord Pleanála. In that case the Supreme Court indicated that the legislature, in confining the opportunity of persons impugning the decisions of Planning Authorities, thereby intended that a person who had obtained a planning permission should within a short period of time thereafter, in the absence of Judicial Review, be free of any further challenge to that decision and therefore be able to act on the basis of that decision. In this context the Supreme Court held that as a matter of construction where a restriction is imposed on the exercise of a statutory right such as in Section 82 (3B) of the Act, 1963, it should be capable of being construed in a clear and definite fashion. In the course of his judgment at page 136 of the report Finlay CJ, with whom the other members of the Court agreed stated inter alia as follows:-

28. Based upon this quotation, Counsel has submitted that, in the interest of legal certainty, the section should be construed in a clear and definite fashion. It is submitted by counsel that once a decision is made, the grant is merely an administrative function and not a quasi-judicial function. It is submitted that the Court is concerned with the decision making process and not the administrative function in itself.

29. Further reliance is placed upon the provisions of Section 26 (5) (b) where it is indicated, inter alia , that where an appeal is brought from a decision of a Planning Authority and is not withdrawn the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the Planning Authority as from the time when it was given.

30. Reliance is placed upon the decision of the Freeney v Bray U.D.C. [1982] ILRM 29 where O’Hanlon J dealt with the effect of what is referred to as a ‘ default permission ’ when he stated inter alia as follows at page 37 of the report:-

31. Further reliance is placed upon the decision of Lavan J in the case of McCann v An Bord Pleanána [1997] 1 I.R. 264 where at page 271 of the report he stated, inter alia , as follows:-

32. In this regard further reliance is placed by counsel upon the concept of legal certainty. Furthermore it is again submitted that the grant is a mere mechanical function once a decision is deemed to have issued.

33. On behalf of the Applicant Mr. O’Donnell submitted that with reference to the Keelgrove case that it related to a decision of An Bord Pleanála and that this distinction was crucial. With regard to the procedure under Section 26 he submitted that it was a two stage decision process with an initial decision given by the Local Authority. He said that the trigger mechanism was an appeal to An Bord Pleanála. If there was no appeal to the Board then the decision to grant stood. Where there was an appeal made to the Board it became the final stage in the decision making process. It is submitted that the decision under Section 26 is a decision to grant a permission. It is submitted that the decision of the Planning Authority is in effect a preliminary decision contingent upon a decision of An Bord Pleanála. In this regard reference was made to Section 26, subsection 9 (a) of the Act, of 1963, which provides as follows:-

34. In this regard it is submitted that a further administrative act, namely a grant of decision must be made. It is submitted that if there is no appeal then the decision to grant applies. It was submitted that the date when the grant is made is the date from which the permission will apply and is the date for which all consequences flow; that there is a continuum between the initial decision and the final grant; that the critical date is the date of the final decision, which in effect is the date of the final grant, and that the Board’s decision has the same consequence as a final grant of permission.

35. It is submitted further that where an appeal is made to the Board, the Board can give a direction as to when the final grant is to issue and that the grant reflects the decision made. Counsel on behalf of the Applicant accepted that legal certainty was necessary. In the instant case Counsel submitted that the 27th day of May, 1999, was the date of the grant while the appeal was submitted on the 26th of July, 1999, and in this regard submitted that the application was made within two months of the date of giving of the decision.

36. Counsel referred to the decision of Brady v Donegal County Council [1989] ILRM 282 and submitted that an absurd consequence could flow and a mischief unless the final decision was taken to amount to a reference to the date of the grant of permission. Counsel submitted that the date of decision referable to an appeal must be different to that in Section 82. With reference to the cases referred to by counsel on behalf of the Respondent Council it is submitted that all the previous decisions of the Courts related to decisions of An Bord Pleanála. It is submitted by counsel that a serious consequence of the time limit is a consideration of the right of access to the Courts.

37. In reply Mr. Owens, Senior Counsel on behalf of the Respondent Council submitted that the provisions of the Act of 1992 have the benefit of the presumption of constitutionality. He submitted that there is no ambiguity in the section and the essential question is what the decision is in any given case. The same concept of a decision appears in Section 82 and Section 26 of the Act. A distinction had to be drawn between a decision to grant and the grant itself. Counsel submitted that the decision of the Respondent Council was a decision to grant and not merely an intention to grant. Counsel submit further that a decision appearing in Section 26 subsection 8 was not equivalent to a decision in Section 26 subsection 9 of the Act of 1963 as amended.

38. This Court is of the opinion that a distinction must be drawn between a decision of a Planning Authority to grant planning permission and the grant itself. In this regard it is clear that the decision made in the instant case was made on the 31st day of March, 1999, and was notified to Eircell Limited on the 1st of April, 1999. The distinction between the decision to grant and the grant itself is one which is reflected in the decision of the High Court in the Keelgrove case previously referred, albeit a case which was considered in the context of an appeal to An Bord Pleanála. Nevertheless this Court is of the opinion that the relevant time commenced on the 31st day of March, 1999, when the decision of the Respondent Council was made and consequently any Judicial Review sought of that decision had to be commenced within a period of two months from the date of that decision. Consequently this Court must hold that insofar as no application was brought pursuant to Section 82 of the Act of 1963 until July, 1999, that this application was made outside the time permitted by section 82 of the Act of 1963. This Court has no discretion to extend the time limit in Section 82 and accordingly the appeal must be considered to be out of time. Accordingly this Court holds with the applications made on behalf of the Respondent Council.