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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. F. Quirke & Sons -v- Maher [2008] IEHC 428 (19 December 2008)
URL: http://www.bailii.org/ie/cases/IEHC/2008/H428.html
Cite as: [2008] IEHC 428
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Judgment Title: M. F. Quirke & Sons -v- Maher Composition of Court: Judgment by: Herbert J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 428 THE HIGH COURT JUDICIAL REVIEW 2008 157 JR BETWEEN M. F. QUIRKE AND SONS APPLICANT AND
MICHAEL MAHER RESPONDENT JUDGMENT delivered by Mr. Justice Herbert on the 19th day of December 2008 The applicant is the owner and, operator of a quarry at Ballahacommane, Killarney, Co. Kerry. The most recent of a series of planning permissions granted by Kerry County Council, the relevant Planning Authority, to the applicant in respect of development at the quarry was dated the 11th December, 2002. It was expressly provided by Condition 3(ii) of the that planning permission that activities are restricted to quarrying, processing, crushing, haulage, storage and stock piling of aggregate. It was further expressly provided by Condition 25 of that planning permission that the extraction of sand and gravel by blasting was specifically excluded. The applicant appealed from this Decision of the Planning Authority to An Bord Pleanála. An Bord Pleanála, by a Decision of 12th May, 2003, reference No. PL08, 201503, granted planning permission to the applicant to continue the operation of the existing quarry and associated aggregate extracting, screening and crushing and for the extraction of aggregate from two further areas adjacent to the existing quarry. It is a Condition of this planning permission that it is granted in accordance with the plans and particulars lodged. Condition 2 of this planning permission granted by An Bord Pleanála provides that:-
Reason: In the interests of clarity.” Condition 5 of the planning permission granted by An Bord Pleanála stipulates that within four months of the date of the order, the applicant must submit to Kerry County Council for written agreement, a proposal for an Environmental Management System. As required by Condition 5 of the planning permission granted by An Bord Pleanála, a proposed Environmental Management System was furnished by the applicant to Kerry County Council. Section 5(a) of this Environmental Management System which, in compliance with the provisions of Condition 5 of the planning permission granted by An Bord Pleanála on the 12th May, 2003, was furnished by the applicant to Kerry County Council on or about the 15th October, 2003. Under the heading, “Noise Suppression”, it stated that, “no blasting takes place at this site”. It went on to state that the on-site noise suppression methods would ensure that sound levels would remain well within the 55dB(A) range required under Condition 9 of the planning permission granted by An Bord Pleanála. This Condition 9, stipulates that in the interests of residential amenity the equivalent sound levels attributable to all on-site operations associated with the proposed development should not exceed 55dB(A) over a continuous four hour period between 08.00 hours and 19.00 hours, Monday to Saturday inclusive, when measured outside any dwelling house in the vicinity of the site. This Environmental Management System appears to have been agreed in writing by Kerry County Council as required by Condition 5 of the planning permission granted by An Bord Pleanála. This representation in the Environmental Management System, submitted to and agreed by Kerry County Council, that blasting did not take place at the applicant’s quarry at Ballahacommane, reflects the terms of the Environmental Impact Statement furnished in July 2002, by E.G. Pettit and Company, Consultant Engineers on behalf of the applicant, for the purpose of obtaining a grant of planning permission. At para. 2.4.3 of this Environmental Impact Statement, under the heading, “Proposed Operation”, it was stated that:-
In Appendix No. 3 of this Environmental Impact Statement, at s. 1.2 under the heading, “Noise Report: Existing Development”, it is stated that:-
[a] a gravel washing unit and screening plant, [b] rubber wheeled mobile loading shovels . . ., [c] trucks entering and leaving the site [d] a tracked excavator operating at the pit face – also used to displace overburden, [e] a 40 tonne dump truck hauling aggregate from the pit face to the gravel processing area. Currently there is no gravel crushing or batching carried out at the site and blasting is not used. Under existing planning permission the management has the option to operate a gravel crusher at the site.” It was common case between the parties at the hearing of this application for judicial review, that on the 30th March, 2007, explosives were transferred to and were employed at Ballahacommane Quarry. Following upon this use, two adjoining property owners registered complaints with An Garda. They contended that the applicant did not have planning permission for the use of explosives at Ballahacommane Quarry. In support of this opinion they referred to a copy of the applicant’s Environmental Management System and, pointed in particular to the section which states that no blasting takes place at the site. At para. 9 of his affidavit sworn in this application on the 6th May, 2008, Supt. Maher states that he refused permission to the applicant to again use explosives for the blasting of materials at Ballahacommane Quarry on the 28th November, 2007, “on the grounds that planning permission was granted to the applicant on the basis that no blasting operations were carried out at the site”. The letter of refusal from Supt. Maher to the applicant is date-stamped the 28th November, 2008, and it states as follows:-
By letters dated the 30th November, 2007, and 14th December, 2007, Messrs J. and P. O’Donoghue, Solicitors for the applicant, sought from Supt. Maher reasons for this refusal. By a letter dated the 30th March, 2007, Supt. Maher wrote to Mr. Tom Curran, County Manager of Kerry County Council giving details of the complaints received following upon the explosion at Ballahacommane Quarry requesting advice. The third paragraph of this letter states as follows:-
By letter dated the 8th June, 2007, Supt. Maher was advised by K. Barrett, S.S.O., Planning Section, Kerry County Council that it would appear that there was no prohibition on blasting conditioned (the emphasis is mine) for the operation of the Ballahacommane Quarry. By a letter dated the 3rd July, 2007, Supt. Maher responded to the Planning Department of Kerry County Council referring to, what he erroneously describes, as the Environmental Impact Statement, (in fact the Environmental Management System) on which the two complainants placed reliance and which indicated that no blasting would be carried on at the Quarry site. Supt. Maher suggested that there may have been a possible oversight in the planning department’s letter of the 8th June, 2007. The relevant section of the Environmental Management System under the heading, “Condition 5(a) Noise Suppression”, states as follows:-
Vegetation will only be removed as required and adequate screening is to be maintained around the periphery of the development. With these measures the equivalent sound levels will remain well within the 55dB(A) range required under Condition 9 of this planning permission and, more generally, under the EPA guidelines.” By a letter dated the 27th August, 2007, Mr. Christopher Van Schoor, Executive Planner at Kerry County Council Planning Department, with special responsibility for quarries, replied to Supt. Maher’s letter of the 3rd July, 2008, as follows:-
1. There is no mention of blasting in the EIS. 2. Section 2.4.3 of the EIS states that extraction will be by a dedicated (existing) excavator. 3. Section 3.6.3.1 in relation to noise has no mention of blasting as a source of noise. 4. Appendix III of Vol. 3, at p. 2, states ‘ . . . and blasting is not used’. The entire assessment conclusions therefore are based on a ‘no blasting’ scenario.”
(a) Condition No. 2, of the permission granted by An Bord Pleanála on the 12th May, 2003, restricts the activities on site to ‘quarrying, crushing, haulage, storage and stockpiling of aggregate’. (b) The Environmental Impact Statement prepared in relation to the application does not include an assessment of the impacts associated with extraction by blasting. (c) The Environmental Management System prepared and submitted to the Planning Authority by M.F. Quirke and Sons in compliance with Condition No. 5 of the permission granted states ‘no blasting takes place at this site’. Supt. Maher also sought guidance, through the office of the Chief Superintendent. of An Garda Síochána at Tralee, from the Legal Section of An Garda Síochána at Garda Headquarters in Dublin. By a letter dated the 27th February, 2008, Chief Supt. G. Blake replied as follows:-
The Attorney General is of the view that licenses should not be granted in situations where planning permission to carry out such activities has been refused or where Enforcement Orders to desist from such activities have been made. In other words illegal acts cannot be condoned by the State. While District Officers may be aware of the existence of planning matters relating to a quarry, this should not be the determining factor, but rather it should be on the basis of criminal liability that any decision ought to be made. The Attorney General has not advised subsequent to the issuing of H.Q. Directive 1(L) 2005. The Legal Section is reverting to the Attorney General in relation to this advice in light of recent contradictory advice from Counsel which has resulted in the Garda Síochána conceding in a number of similar proceedings. Until such time as the Attorney General decides on the issue the contents of H.Q. Directive 1(L) 2005 is still enforced.”
Where the legality of the quarrying operations is contested particularly:- * Where planning permission for the activities has been refused. * An Enforcement Order is issued by the Local Authorities directing quarry operators to cease operations or * Complaints have been received from members of the public of damage to property due to blasting.” The matter was referred to the Attorney General for directions and in his advice the Attorney General has directed that following the ex-tempore judgment of Geoghegan J. in the High Court in Lackagh Quarries Limited v. The Minister for Justice, Equality and Law Reform and Others, a Superintendent cannot refuse a licence on planning grounds because planning decisions are a matter for the local authority or An Bord Pleanála, as the case may be. However, the Attorney General is of the view that licences should not be granted in situations where planning permission to carry out such activities has been refused, or where Enforcement Orders to desist from such activities have been made. In other words illegal acts cannot be condoned by the State. The Attorney General is also of the view that complaints regarding damage to family homes and outhouses should be considered as a further and separate matter in that it concerns safety.” At para. 14 of his affidavit sworn in this application on the 6th May, 2008, Supt. Maher avers as follows:-
The Statement of Opposition asserts that Supt. Maher exercised his statutory discretion within jurisdiction and, that he was entitled to have regard to the advice of the relevant Planning Authority. It is denied that Supt. Maher acted in breach of fair procedures and natural justice in not allowing the applicant to respond to the views expressed by Kerry County Council, before deciding to refuse the R.C.A. Transfer Document. It is asserted that Supt. Maher did not enter into the planning arena or assume any expertise in the field of planning, but was entitled to reach the decision he did, reasonably and justly on the facts before him and, that he gave a sufficient reason for his decision. It is further claimed that Supt. Maher was obliged to consider whether in all the circumstances the granting of an R.C.A. Transfer Document was in the public interest or, whether this would be to condone and unlawful act. The applicant’s claim for damages is denied. I find that the Decision of Kerry County Council, dated the 11th December, 2002, to grant planning permission, was subject to an express condition that the extraction of sand and gravel by blasting was specifically excluded, in order to protect the amenities of the area. I find that the Decision of An Bord Pleanála, dated the 12th May, 2003, to grant planning permission, in accordance with the plans and particulars lodged with Kerry County Council, contains no similar express condition excluding blasting. An Bord Pleanála imposed an express Condition in the following terms:-
Reason: In the interests of clarity.” It was submitted on behalf of the respondent that the restriction of use to “quarrying”, prohibited the employment of blasting and the use of explosives as a method of extraction of materials at the Quarry. I cannot agree with this submission. In s. 261(13) of the Planning and Development Act 2000, “quarry” is defined by reference by s. 3(2) of the Mines and Quarries Act 1965, where it is defined as:-
In my judgement there is nothing in the ordinary meaning of the word “quarrying” or, in the meaning derived from the provisions of the Mines and Quarries Act 1965, which would in any way exclude the use of explosives or the employment of blasting at Ballahacommane Quarry. Condition 2 of the planning permission granted by An Bord Pleanála on the 12th May, 2003, which limits the types of activities which may be carried on at Ballahacommane Quarry, does not restrict the applicant to any particular indicated method of extraction. However, there must be a very strong argument that the only logical inference to be drawn from this planning permission considered as a whole, as it must properly be considered and, not piecemeal, is that An Bord Pleanála did not deem it necessary or appropriate to impose an anti blasting condition, having regard, as it is obliged to do by the provisions of s. 173(1) of the Planning and Development Act 2000, to the clear statement representation contained in Vol. 3 of the Appendix to the Environmental Impact Statement, under the general title “Noise Impact Assessment”, which declares that:-
Condition 5 of the planning permission granted by An Bord Pleanála imposed an obligation on the applicant, within four months of the date of the order granting planning permission, to submit to Kerry County Council for written agreement a proposal for an Environmental Management System. The stated reason for the condition is that An Bord Pleanála considered it necessary in the interest of orderly development and the safeguarding local amenities. The planning objective sought to be achieved was the monitoring and regulation of environmental impacts identified by An Bord Pleanála. In order to identify possible environmental impacts An Bord Pleanála had a duty, inter alia to properly and carefully consider and evaluate the Environmental Impact Statement submitted by the applicant. In s. 2 of the Planning and Development Act 2000, an “Environmental Impact Statement” is defined as:-
(b) Proposals for the on-going monitoring of sound emissions and, (c) Proposals for the suppression of dust on-site. Condition 5 does not permit of multiple Environmental Management Systems being submitted by the applicant to Kerry County Council if, and according as, the applicant decided to make changes in the operation, including the system of extraction identified in the Environmental Impact Study. Condition 5 requires that the Environmental Management System be submitted for agreement by Kerry County Council within four months of the date of the order granting planning permission and, that all actions be implemented within six months of the date of that order. In my judgment, if the applicant was correct in its belief that the planning permission granted by An Bord Pleanála entitled it to engage in blasting at Ballahacommane Quarry whenever the applicant decided it was expedient so to do and, to whatever extent the applicant considered necessary, it could well be argued that the planning permission was therefore invalid as having been granted on wholly insufficient information in the Environmental Impact Statement regarding impacts on the environment and, as allowing additional environmental impacts, which will aggravate the identified impacts without properly considering and assessing the matter. It appears to me that the same argument could be made even if An Bord Pleanála had left the matter to be agreed between the applicant and Kerry County Council. I do not accept, as contended by the applicant, that at most this was simply a question of whether blasting would or would not amount to such an intensification of a permitted use, through the introduction of a different production method so as to amount to a material change in the permitted use and consequently a need to obtain a new planning permission. In my judgment, the issue was whether the use of explosives and, blasting at Ballahacommane Quarry was seemingly contrary to the true meaning and purport of the terms and conditions of the applicant’s existing grant of planning permission and if so forbidden. In Readymix (Éire) Limited v. Dublin County Council and the Minister for Local Government (Unreported, Supreme Court, 30th July, 1974), 004662 at 004664, Henchy J. held as follows:-
Section 1.2 of the Environment Impact Statement contains a plain representation that blasting was not used. I am unable to accept the construction sought to be placed on the sentence by the applicant that “currently” governs “blasting” as well as “crushing” and “batching”. The paragraph reads as follows:-
In my judgment for a number of reasons no estoppel arises against Kerry County Council as the relevant Planning Authority by virtue of the letter of the 8th June, 2007, from K. Barrett, S.S.O. Planning Section to Supt. Maher. It is an expression of opinion rather than a statement of present fact, it is made to Supt. Maher and not to the applicant and, it is well established that an opinion expressed by an officer of a Planning Authority cannot estop that Planning Authority from subsequently contending that the particular development is not permitted. (see Southend-on-Sea Corporation v. Hodgson (Wickford) Limited [1961] 2 A.E.R. 46 per Lord Parker, C.J.). In Hempstown Stone Quarries v. Superintendent Thomas Neville, Garda Commissioner and Minister for Justice, Equality and Law Reform (Unreported, High Court, 15th March, 2005), a judgment strongly relied upon by the applicant in the instant case, the facts were, that a number of persons had objected to the granting of a Recipient Competent Authority Transfer Document by the first named respondent to the applicant. In the course of his judgment in that case O’Neill J. identified the grounds of objection as, traffic management, traffic generation, noise, dust and air quality, dirt and mud on roads, reduction in property prices, damage to the rural environment, interference with the water supply and damage to the equestrian industry. The learned Judge found that the first named respondent had considered these objections and had refused to issue the Recipient Competent Authority Transfer Document because, as stated in the letter of refusal, he was concerned about noise, water and air pollution and, possible damage to houses in the area. He also referred to the fact that the relevant Planning Authority had issued an Enforcement Notice pursuant to the provisions of s. 154 of the Planning and Development Act 2000, requiring the applicants to cease all developments on the site. In that case, O’Neill J. held, that though the first named respondent was legally competent to make the decision sought to be impugned, his decision was ultra vires his powers and, the procedures adopted by him in reaching that decision were in breach of the applicant’s constitutional right to fair procedures. In the course of his judgment the learned Judge held as follows:-
The first named respondent was not entitled to make a decision based on the merits of the content of the objections taken on these grounds. In placing himself as a decision maker on the merits of these objections, he was usurping the statutory functions and authority of the local planning authority and perhaps also the Environmental Protection Agency. He was not entitled to do that. He would have been entitled to have regard to a proven non-compliance by the applicant with other statutory or legal obligations such as proven breaches of the planning code. This would have had a relevance to his decision in two respects. Firstly, it would have impinged upon the character of the Applicant. Secondly, the absence of appropriate planning permission, if planning permission was required in the first place, for the activity for which the explosives were required would have vitiated ab initio the legal entitlement of the Applicant to carry on the activity in question. In this case, the First Named Respondent went much much further in taking into account and deciding in favour of the objectors on the merits of their objections. In doing so, in my opinion, he acted ultra vires.” In the Hempstown Stone Quarries case, O’Neill J. found that a Superintendent of An Garda Síochána, as the Recipient Competent Authority, could have regard to a proven non-compliance by an applicant with statutory or legal obligations, such as breaches of the provisions of the Planning Code, as a ground for refusing to issue a Recipient Competent Authority Transfer Document pursuant to the provisions of Article 9(2) of S.I. 115 of 1995. This Article 9(2) provides that:-
(a) the information provided in support of an application for an approval under Regulation 8(2), or (b) the conditions under which a transfer for which such an approval is sought might take place, having regard in particular to any special security requirements, the recipient competent authority may refuse to give the approval.” Certainly, an adverse decision of a Court of competent jurisdiction in proceedings taken pursuant to the provisions of s. 160 of the Planning and Development Act 2000, would clearly amount to sufficient proof of non-compliance with the provisions of the Planning Code. However, I do not consider that conclusive proof of this nature is always required and, I do not believe that the judgment of O’Neill J. in the Hempstown Stone Quarries case is authority for such a proposition. Where a grant of planning permission, or even a decision to grant planning permission, contains an express condition that the extraction of materials at a quarry by blasting is specifically excluded, in my judgment it would incompatible with one of the principle objectives of Council Directive 93/15/EEC of 5th April, 1993, as identified in Article 3 thereof, to ensure that a party seeking to obtain a transfer of explosives must be legally entitled and authorised to seek that transfer, if a Recipient Competent Authority Transfer Document could not be refused other than by a decision of a Court of competent jurisdiction. If an applicant seeks a Recipient Competent Authority Transfer Document for the excavation of materials in a quarry by blasting, and such blasting is prohibited by an express condition in the planning permission under which the applicant is carrying on the particular development, then in my judgement, there is sufficient evidence to enable the relevant Superintendent of An Garda Síochána to reasonably and rationally arrive at a prima facie conclusion that the applicant is not legally entitled to a transfer of explosives for that purpose. It must be accepted, and I find as a fact, that there is no such express prohibitory condition to be found in the planning permission granted by An Bord Pleanála to the applicant in the instant case. However, I cannot conceive of any dictate of law or a public policy which would require that proof of possible non-compliance with the provisions of the Planning Code should be confined to evidence of the existence of an express prohibitory condition forbidding blasting in the particular planning permission. In my judgment, it is therefore a question of whether the facts found in each particular case would permit a Superintendent of An Garda Síochána, to reasonably and rationally form a prima facie conclusion that the applicant for a Recipient Competent Authority Transfer Document may be acting without, or in breach of the terms of, a planning permission. In the instant case, Kerry County Council is the Planning Authority charged by statute with the duty of securing the proper planning and development of an area which includes Ballahacommane Quarry. In that capacity, it advised Supt. Maher that the applicant had informed An Bord Pleanála, before it was granted planning permission by that body and, had subsequently informed Kerry County Council in the course of complying with a condition contained in that planning permission, that no blasting took place on the site. It is important to stress that this was not a matter of interpretation or of construction on the part of the Planning Authority. This was the express assurance and representation freely given and made by the applicant in its own Environmental Impact Statement and in its own Environmental Management System. In my judgment it was reasonably and rationally open to Supt. Maher to form a prima facie view, on being appraised of these matters by the Planning Authority, and in the light of the other circumstances that to approve the transfer of explosives to Ballahacommane Quarry, could well be to authorise an unlawful activity, which as an officer of An Garda Síochána he could not do. I believe the applicant is quite wrong in its contention, that these facts count for far less than the issuance by a Planning Authority of an Enforcement Notice pursuant to the provisions of s. 154 of the Planning and Development Act 2000, which it argued, – though this is not at all clear, – O’Neill J., by inference considered insufficient proof. The decision to issue such an Enforcement Notice is the sole act of the Planning Authority and, that decision could well be made in error or even through inadvertence. Even if the assurance and representation contained in the Environmental Impact Study was, as alleged by the applicant, - which for the reasons already set out I do not accept, – confined to the undefined present, there was no such qualification in the representation made in the Environmental Management System, which is the representation latest in time. Further, it was not a matter which could be decided by Supt. Maher, whether, when or on what planning and environmental terms the applicant was entitled to commence blasting at Ballahacommane Quarry. It was not argued before me and, entirely correctly so, that Supt. Maher was estopped from refusing to issue the second Recipient Competent Authority Transfer Document by reason of having issued the first one, which of course was done at a time when he was entirely unaware of the full facts. I have no doubt, that other instances of what maybe considered to be sufficient proof will be argued on other facts in other cases. In my judgment it is not feasible to state any general rule in the matter. Each case will fall to be decided on its own particular facts and, the law should be permitted to develop incrementally. In this case, I am satisfied that there was no failure on the part of Supt. Maher to adopt fair procedures in arriving at his decision to refuse to grant the Recipient Competent Authority Transfer Document to the applicant. In his letter to Mr. Tom Curran, County Manager of Kerry County Council, date-stamped 30th March 2007, (but referred to in the letter of the 3rd July, 2007, to K. Barrett, Planning Section, Kerry County Council, from Supt. Maher, as being dated the 29th March, 2007), Supt. Maher stated as follows:-
I am satisfied that the applicant was fully aware of the problem following the blast at Ballahacommane Quarry on the 29th March, 2007, and the subsequent telephone call from Supt. Maher. The applicant then had ample opportunity to take expert advice in the matter, including contacting the Planning Authority and making a full response to Supt. Maher’s telephone call prior to applying for a further Recipient Competent Authority Transfer Document on the 20th November, 2007. In my judgment there was no obligation on Supt. Maher in the circumstances of this case to conduct a sworn or unsworn inquiry into the issue of whether the applicant was or was not entitled to a Recipient Competent Authority Transfer Document. I am satisfied that there was no obligation on Supt. Maher, before making the decision to refuse to grant the transfer document to the applicant, to hold a, “judicial type of hearing involving the examination and cross examination of witnesses”. (see Doupe v. Limerick Corporation [1981] I.L.R.M. 456, per Costello J.; Davy v. Attorney General & Others [2008] 2 ILRM 507 at 523-524 per. Charleton J.). However, the applicant contends that Supt. Maher failed to observe fair procedures in failing to furnish the applicant with copies of the letters dated the 8th June, 2007, and 27th August, 2007, from the Planning Section of Kerry County Council and, allowing them a reasonable opportunity to respond, before making a decision in the matter and, also in failing to give reasons for that decision. The reason given by Supt. Maher was that, “planning permission granted for this site on foot of an Environmental Impact Statement submitted by you is based on a ‘no blasting’ scenario.” I am satisfied that this reason could not but have clearly conveyed the entire picture to the applicant. In making an administrative decision of this nature I am satisfied that there was no obligation on Supt. Maher to provide a more ample statement of reasons or to deliver a discursive judgment. (see F.P. and Another v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164 at 172-173, Supreme Court per Hardiman J.). I find that Supt. Maher, on or about the 29th March, 2007, told the applicant that two local objectors were contending that the applicant had no planning permission to carry out blasting at Ballahacommane Quarry because their planning permission was based on a document given out by them before they got planning permission in 2001, indicating that no blasting would be carried out at the existing quarry or proposed quarry extension sites. This is the only proper inference to be drawn from what is averred by Supt. Maher at para. 7 of his affidavit, sworn on the 6th May, 2008, which is uncontradicted, and the contents of his letter of the 28th/30th March, 2007, to Mr. Tom Curran, County Manager, Kerry County Council. Supt. Maher was entitled to and did canvas the opinion of the Planning Authority for the area on this contention by the local objectors. The applicant obviously considered that it was entitled to extract materials by blasting. Kerry County Council, as the relevant Planning Authority, advised Supt. Maher that the entire planning application for the development at the quarry was based on a “no blasting” scenario. Supt. Maher could not and did not purport to decide the matter of whether the applicant’s planning permission did or did not permit blasting. Supt. Maher had to decide, in accordance with the provisions of Article 9(2)(a) of S.I. No. 115 of 1995, whether the information provided was sufficient to grant the necessary Recipient Competent Authority Transfer Document. Whether the opinion of the Planning Authority and the opinion of local objectors was right or was wrong was not a matter which Supt. Maher could decide. He could only accept that this was their view in the matter. In my judgment, in such circumstances, substantial fairness did not require that he furnish the letters of the 8th June, 2007, and 27th August 2007, to the applicant and afford them an opportunity of commenting on these letters if they so desired. Because this is an issue as to fair procedures, I take no account of the probability that the applicant’s response to the opinion of the Planning Authority would not matter anyway, as it was not the function of Supt. Maher and, he lacked jurisdiction, to resolve any conflict between the Planning Authority and the applicant. Under the Statutory Scheme which gives effect to Council Directive 93/15/EEC of 5th April, 1993, Supt. Maher had to make a decision whether or not to grant the Recipient Competent Authority Transfer Document. In my judgment, he was entitled both reasonably and rationally to decide as he did on the information before him. The court will therefore refuse the application.
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