High Court of Ireland Decisions

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2000/411 JR

BETWEEN

SEAMUS McANENLEY

Applicant

and

AN BORD PLEANÁLA

Respondent

and

MONAGHAN COUNTY COUNCIL

Notice Party

JUDGMENT of Mr Justice Kelly delivered the 31st May, 2002.

1.      On the 26th June, 2000 An Bord Pleanála (the board) determined an appeal brought by the applicant against the refusal of Monaghan County Council (the County Council) to grant planning permission for a development at Emyvale, Co. Monaghan. That determination of the board is challenged in these proceedings which were brought by leave of Quirke J. granted on the 9th August, 2000.

2.      The essence of the case is that there was a failure on the part of the County Council to comply with statutory obligations imposed on it in respect of the transmission of certain documents to the board. Such failure meant that material which, it is said, ought to have been before the board when it made its determination was not. Its determination ought therefore to be quashed, says the applicant.

3.      A substantial number of documents are involved but the factual and legal positions which obtain concerning them differ from document to document. I will consider the position of each of them in turn. Before doing so I should sketch out the legal framework against which this application must be viewed.

4.      The entire of the planning process is governed by statute and regulation.

5.      The position of the board when dealing with an appeal from a planning authority is clear. The board is to "determine the application as if it had been made to it in the first instance". (see section 4(AA) 5(b) of section 26 of the 1963 Act as amended).

6.      Section 6 of the Local Government (Planning and Development) Act 1992 deals with the submission of documents to the board by a planning authority against whose decision an appeal is taken. It reads as follows:

"Where an appeal is made to the board the planning authority concerned shall, within a period of fourteen days beginning on the day on which a copy of the appeal is sent to them by the Board, submit to the Board -

(a) a copy of the planning application concerned and of any drawings, maps, particulars, evidence, environmental impact statement, other written study or further information received or obtained by them from the applicant in accordance with regulations under the Acts.

(b) a coy of any report prepared by or for the planning authority in relation to the planning application, and

(c) a copy of the decision of the planning authority in respect of the planning application and a copy of a notification of the decision given to the applicant".

7.      It is suggested that this statutory provision is to be interpreted as not creating a mandatory obligation on a planning authority. Rather it is said to be permissive.

8.      I cannot agree with this proposition. In Elm Developments v An Bord Pleanála [1981] ILRM 108 at 110, Henchy J. said

"Whether a provision in a statute or a statutory instrument, which on the face of it is obligatory (for example, by the use of the word 'shall'), shall be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused".

9.      I am of the view that the legislature in setting up the statutory scheme of appeals to the board had in mind that certain documents would be placed before it when it is called upon to exercise its de novo jurisdiction involving an appeal to it from a decision of a planning authority.

10.      The obligation to submit these documents is placed on the planning authority. The section uses the word "shall". The intent of the legislature is that there should be placed before the board the documentary material as specified which was on the planning authority file and was before it when it made its decision together with the documents which are set forth at subsection (c) which relate to the decision itself.

11.      The documents in question in this application are as follows

(1) It is common case that the decision of the planning authority was not forwarded to the board. The board did not therefore have the decision of the planning authority before it when it made its decision on the appeal.

It did have a copy of the notification to grant permission. It is said that this document contained all of the material which was contained in the decision itself. In this case the decision was constituted by an order of the County Manager. It is argued that this failure to comply with the provisions of section 6(c) of the Act should be treated and excused on a de minimis basis.

It is difficult to treat non-compliance with an express statutory requirement on a de minimis basis. The notification of a decision of a planning authority will in all cases contain the essence of the decision itself. Notwithstanding that, parliament has ordained that both should be provided to the board. I cannot disregard this statutory requirement.

That is not to say that notwithstanding non-compliance with the provisions of section 6(c), in an appropriate case Certiorari might be withheld as a matter of discretion if that were the only lacuna involved and no injustice would result. But that is not the case here for reasons which I will turn to presently. There was here a failure to comply with the obligations imposed under section 6(c) of the 1992 Act but it was not the only failure.

(2) Section 6(a) has been the subject of debate. I must deal with a proposition put forward by the board. Sensibly, it was not supported by counsel for the planning authority.

12.      The proposition is to the effect that the reference to "in accordance with regulations under the Acts" at the end of section 6(a) refers to regulations made under the section. As no such regulations have been made it is said that the sub-section is not in operation nor has it been since enactment.

13.      Apart from the absurd situation that such a proposition would result in, it is in my view plainly wrong as a matter of construction of the section and I reject it.

14.      Counsel for the applicant contends that the net effect of section 6 of the 1992 Act is that all documents on the planning authority's file have to be submitted to the board when an appeal is taken to it.

15.      Counsel for the planning authority submitted that a number of the documents which were not sent could not be a cause for complaint because the section only covers documents which are provided in accordance with regulations. That is said to apply to the species of documents covered in section 6(a) and 6(b). So, the report from the fisheries board which was sent to the planning authority but not forwarded to the Board was properly excluded. Likewise the plan which was not sent.

16.      I need not and indeed do not decide whether counsel for the applicant or the planning authority(who propounds the narrower construction) is correct in their respective arguments as to the construction of section 6(a) and (b). The reason for that is that even if counsel for the planning authority is correct as to his interpretation of the provision, it avails him nothing as far as the two documents in question are concerned.

17.      The reason for this is that both documents are in fact provided to the planning authority in accordance with regulations.

18.      The regulations in question are the Local Government (Planning and Development) Regulations, 1994. The plan was required to be furnished pursuant to the provisions of regulation 16(3).

19.      The relevant fisheries board provided its views to the planning authority pursuant to the provisions of regulation 32(f). Regulation 32 requires a planning authority on receipt of a planning application to send a notice of it to a number of bodies that may have an interest. One of these is the appropriate regional fisheries board in circumstances where the planning authority is of the view that the development in respect of which permission is sought might give rise to appreciable discharges of polluting matter into waters. That was done in the present case and the fisheries board expressed its views as being supportive of the development.

20.      Although both the plan and the views of the fisheries board were therefore received by the planning authority on foot of the regulations neither of them were furnished to the board.

21.      In my view the plan falls within the ambit of section 6(a) of the 1992 Act whilst the report from the fisheries board falls within the ambit of section 6(b). It was prepared for the planning authority by the fisheries board in relation to the development.

22.      As is clear, these two further documents (over and above the decision of the planning authority) were not forwarded to the board. Even on the interpretation urged on the court by the planning authority they ought to have been.

23.      In my view there was substantial non-compliance with the obligations imposed on the planning authority in the present case. It is no answer to say that, for example, the views of the fisheries board were not relevant to the appeal because the board is obliged to deal with the matter de novo.

24.      In these circumstances it is not necessary for me to consider the other documents in respect of which complaint was made and which were not passed on by the planning authority to the board. Neither do I have to deal with the unsatisfactory evidential position concerning the senior executive engineer's report. If I had to I would find that it was not before the board at the relevant time either and that it ought to have been.

25.      Given the lacunae identified I am not satisfied that the appeal in this case was dealt with within jurisdiction and in accordance with law and consequently the determination of the planning board will be quashed.

26.      I will however, remit the matter back to the board to be dealt with afresh.