Supreme Court of Ireland Decisions

THE SUPREME COURT 97/02
Keane C.J.
Murray J.
McGuinness J.
Hardiman J.
Fennnelly J.
BETWEEN:
ASHBOURNE HOLDINGS LIMITED Applicant/Respondent
and AN BORD PLEANÁLA Respondent/Appellant
and THE COUNTY COUNCIL OF THE COUNTY OF CORK Respondent
JUDGMENT of Mr. Justice Hardiman delivered on the 10th day of March, 2003, [Nem Diss].
1.      The applicant/respondent (hereafter "Ashbourne") is the owner of lands comprised in Folio 5759 of the Register of Freeholders, Co. Cork. These lands are commonly known as the Old Head of Kinsale. Ashbourne has developed the lands by laying out a golf course on them. It is accepted by the parties that this development was, at all material times, an exempt development and did not require planning permission.
2.      By a decision of An Bord Pleanála (hereafter "the Board") of the 6^th May, 1993 Ashbourne was granted planning permission subject to conditions for a development. This comprised the erection of a golf clubhouse and ancillary equipment building together with various necessary site works, car park, roadways and drainage, on a portion of the lands. Ashbourne erected the clubhouse and carried out other works on the lands but these were not carried out, in certain respects, in accordance with the planning permission and certain conditions were not complied with. Accordingly, Ashbourne applied to the County Council for retention and completion of the golf clubhouse, car park and access road, and for retention of the machinery shed, and retention and modification of the entrance. Permission was granted by the County Council, again subject to certain conditions. On this occasion Ashbourne appealed against some of these conditions to the Board. The result of the appeal was that the application for retention was granted subject, inter alia, to the conditions challenged in these proceedings. Eight conditions were imposed by the Board in its decision dated the 31^st October, 1997.
3.      In substance, the challenged proceedings relate to the question of public access to the Old Head of Kinsale. They are expressed as follows:-

"(1) Access shall be provided at all times during daylight hours for the public to the lighthouse and the area marginal to the neck and the northern rim of the headland to the old lighthouse.

(2) Access to the cliff face and cliff edges for interest groups shall be made available in accordance with details to be submitted to the planning authority for agreement, within three months of the date of this permission. In default of agreement this matter shall be determined by An Bord Pleanála.

4.      Reason: In the interest of amenity and orderly development and having regard to the planning history of the site.

(3) Within three months of the date of this permission the following details shall be submitted to the planning authority for agreement:

(a) –

(b) design, construction and finished detail of the gravel path between the De Courcey Castle and the old lighthouse compound and its specific location.

(4) Any charge for access by the public to the lands south of the new gateway shall not exceed the reasonable cost of insurance and administration of entrance control. This figure shall be agreed with the planning authority within two months of the date of this order and shall not be increased save for the consent of the planning authority".

5.      By order of the High Court (McCracken J.) of the 23^rd March, 2000 Ashbourne were granted leave to seek judicial review of these conditions. McCracken J. delivered a written judgment of that date setting forth his reasons for granting of leave. On the 21^st March, 2001 the High Court (Kearns J.) decided to quash the conditions the subject of this appeal.
6.      By a further order, the High Court certified, pursuant to s.82(3B)(b) of the Local Government (Planning and Development) Act, 1992, as amended, that the Board have leave to appeal to the Supreme Court on three specified points of law. More general issues were, however, argued on the hearing of the appeal.
Issues on Appeal
7.      On the hearing of this appeal, the issues raised fell into two broad categories. The first of these related to the validity in principle of conditions directed at ensuring or regulating public access to the Old Head of Kinsale lands, adjacent to the lands for which permission or retention was sought, and being in the same ownership. The second category related to res judicata and to whether the conduct of Ashbourne in the planning history of the lands disentitled it to relief to which it might otherwise be entitled, or allowed the Court in its discretion to refuse such relief. These are all estoppel or preclusion issues.
Conditions relating to public access
8.      These conditions were challenged upon a number of grounds. The most radical of these was that the conditions in question were simply ultra vires the Board. It was also submitted that the said conditions, or some of them, were void for vagueness or uncertainty or were unreasonable in the legal sense. Counsel for Ashbourne, however, described the question of vires as "the first and last question" on this aspect and it is convenient to deal with this first.
9.      There are a number of factual matters relevant to the vires question which are indisputable. Firstly, prior to the development of the golf course there was no public access as of right to any part of the Old Head of Kinsale. This was found to be so in an earlier decision of the Board and was not challenged in the present proceedings.
10.      Secondly, the Board was not aware of any previous case in which a condition of public access was attached to a grant of planning or retention permission in respect of adjoining lands.
11.      Thirdly (though this mainly relates to the disentitlement/discretion point relied on by the Board in the alternative) it is indisputable that Ashbourne had indicated, prior to the first application for permission, a willingness to accept and facilitate a measure of public access. Furthermore, it had not appealed conditions in that regard contained in the original planning permission.
12.      Fourthly, though there is statutory provision, considered below, for the creation by order of the planning authority of public rights of way over lands, this had not been availed of in the present case. If a public right of way were thus created, the planning authority would be responsible for its maintenance. The Board, however, denied that the right of public access to which the disputed conditions relate is in the nature of a right of way.
Power to impose conditions
13.      The power to impose conditions on a planning permission arises under s.26 of the Local Government (Planning and Development) Act, 1963. This confers a power on a planning authority to grant permission subject to or without conditions, or to refuse permission. It also provides that in dealing with any application "… the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof) … and the matters referred to in sub-s. (2) of this Section".
14.      Without prejudice to the generality of s.26(2), the following subsection states that "conditions" include all or any of a lengthy list of specific conditions. Of these the most relevant is:

"(a) conditions for regulating the development or use of any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission."

15.      On the hearing of this appeal, no source of power to impose the challenged conditions other than s.26 was relied upon.
16.      It is clear from the terms of s.26 that any condition must relate to the proper planning and development of the area. Furthermore, a condition relating to a development or use of any land adjacent to the land to be developed and in the same ownership or control requires to be a condition which is expedient "for the purposes of or in connection with" the development the subject of the permission.
17.      It appears to me that these restrictions on the vires to impose conditions require to be strictly construed. The State (at the prosecution of FPH Properties S.A) v. An Bord Pleanála [1987] I.R. 698 is authority for that proposition in relation to the requirement for planning permission, and in relation to the vires to impose conditions under s.26(2)(a), the need for strict construction is still clearer and more explicit. Section 26(1) strictly limits or "restricts" the planning authority to the consideration of planning matters, being the proper planning and development of the area. The section goes on to mention specific matters to which it must have regard.
18.      The structure of s.26, then, is that a general power to impose conditions is subject to a general restriction. This, insofar as relevant here, is to consider only the proper planning and development of the area and in doing so to have regard to the matters set out in sub-s.(2) of the Section.
19.      This in turn provides that the conditions which may be imposed on a permission under sub-s. (1) "may without prejudice to the generality of that subsection", include the conditions then set out. This list includes conditions relating to a large number of specific circumstances. The first of these, quoted above, is that relevant here.
20.      There is no doubt that the general words of subsection (1) would permit the imposition of an otherwise proper condition even if it were outside the scope of any of the subparagraphs of subsection (2). That is the effect of the "without prejudice" provision.
21.      But when a proposed condition is within the scope of any part of subsection (2) then, by reason of the last phase in subsection (1), the planning authority or Board must have regard to the relevant part, here (2)(a). The latter part of this subparagraph, beginning "so far as …", imposes a restriction on the power to impose conditions relating to adjoining land.
22.      Because of the organic linkage between the two subsections of
s.26, created by the last words of subsection (1), this restriction appears to me to apply to any condition relating to adjoining land.
23.      Against this background, is a condition requiring public access to adjoining lands under the same control a proper planning condition? The Board contend that it is, at least in some cases. Counsel for the Board stated that it "may" not be intra vires to impose such a condition on a permission relating to the development of a private house. In connection with a development of the kind in question here, however, it was submitted that:-

"… having regard to the nature of the site, public access for those without the wherewithal to play golf is reasonable".

And:

"Since planning permission enhances the value of land, there can be no objection to making it subject to a condition which may in other respects reduce its value."

24.      Moreover, it was contended, the obligation to allow the public on to the adjoining lands subsisted only as long as the planning permission was availed of. This feature, amongst others, was said to distinguish the right of public access from a public right of way.
25.      In answer to these forthright submissions, Ashbourne was equally forthright. It was contended:

"The imposition of access conditions can be seen as a rudimentary attempt at social engineering made in the clear knowledge that the provision of public access is entirely hostile to the development proposal that is actually before it. This is the reality behind the multitude of documents that are before the court and which allegedly chart the planning history of the matter. The true history is of course much wider than the mere planning dimension but the developer and the court are confined to the prosaic parameters imposed by the constraints of planning and development law. Regrettably, both the planning board and the planning authority ignored these constraints."

Accordingly:

"This litigation is the story of an administrative authority overreaching itself in an endeavour to achieve goals that are foreign to its statutory purpose … the Old Head of Kinsale is scenic. It provides wonderful views. It would make a worthwhile public facility and amenity if it were public. Unfortunately, it is not and it cannot lawfully be dedicated to the public either wholly or partly through the medium of a planning permission or more accurately by the inclusion of conditions in a planning permission."

26.      These are sharply polarised positions. The Board think it wrong that only those with the wherewithal to pay green fees to Ashbourne can enjoy the amenities of the Old Head of Kinsale. But it concedes that the public could not lawfully enjoy these amenities before Ashbourne purchased the land and developed its golf course either. A planning permission for the clubhouse and ancillary facilities is going to enhance the value of Ashbourne's land. Accordingly, the Board submitted, they cannot complain if the public access condition in some other respect reduces the land's value or increases the burdens on Ashbourne as landowner.
27.      Ashbourne contends strongly that the Board's public access arguments, whatever one's response to them at a general level may be, have simply nothing to do with the question of whether the condition is within the powers conferred by s.26. They go further. They say that the justification of the condition in the terms quoted positively demonstrates that the actual reasons for the imposition of the condition relate to some social engineering project of the respondents, and not to planning matters at all. Ashbourne emphasised in this context (as well as in others) that it is open to a planning authority to create a public right of way over land either compulsorily or by agreement with the landowner: see ss.47 and 48 of the Local Government (Planning and Development) Act, 1963. But if the statutory power were availed of, then by s.49(1) of the Act the obligation of maintaining the right of way would devolve on the planning authority. In relation to vires, Ashbourne contend, the existence of this statutory power renders it still more unlikely that s.26 can be read as permitting the same purpose to be achieved obliquely without expense or responsibility to the planning authority as there is statutory power to achieve it otherwise. Ashbourne separately contends that the public access condition is a contrivance to avoid the expense, responsibilities and possible liabilities which would or might follow the creation of a statutory right of way. If this is so, the condition is ultra vires on a different basis, that of being for an improper purpose and of taking irrelevant material into account. These distinct arguments need to be kept strictly separate.
28.      To these points the Board counters that where the Oireachtas has provided two mechanisms for achieving the same purpose the planning authority or the Board on appeal may choose either and is not bound to adopt a route which involves the incurring of expense or the assumption of responsibility. On the second point the Board says that a combination of the Occupiers Liability Act, 1995 and appropriately worded signs warning of any danger and disclaiming any liability would prevent Ashbourne being held liable in respect of an injury caused by a golf ball to a member of the public availing of access to the lighthouse pursuant to condition 1(1). Accordingly the condition of public access need not be more onerous on Ashbourne than a statutory right of way would be.
Decision on vires
29.      Despite the strong positions adopted on each side, the question of vires comes down to a consideration of s.26. If the power to create conditions of this sort is within s.26 then only a successful attack on the constitutionality of that section could prevent its exercise in an appropriate case. If it is not within the section it is legally irrelevant that the Board may think it should be. The rights of property and the imperatives of public access are alike irrelevant to the question of vires, which is a wholly legal one. Ample authority was cited on both sides of the question, some of which will be considered below. Firstly, however, it is interesting to see how the Department of the Environment's Development Control Advice and Guidelines deal with the matter. In the Department's view, a condition must:

" - serve some genuine planning purpose in relation to the development permitted,

be directed at securing the object for which the powers of the Act were given

fairly and reasonably relate to the permitted development".

30.      The document goes on to suggest basic criteria to be considered in deciding whether to impose a condition. These involve considering whether the condition is a series of words:

•    necessary,

•    relevant to planning,

•    relevant to the permitted development,

•    enforceable,

•    precise,

•    reasonable.

Though this document cannot be said to be legally authoritative, it appears to me to be a reasonable commonsense view of s.26.
31.      The section has been authoritatively construed in the judgment of this court delivered by Henchy J. in Killiney and Ballybrack Development Association Ltd v. The Minister for Local Government and Templetin Estates Ltd [1978] ILRM 78. Having quoted s.26(1) and referred to the next subsection the learned judge said:

"It will be seen, therefore, that the power to impose a condition in a development permission must be exercised within the limitations imposed by s.26. In deciding whether the grantor of the permission has kept within those limitations, it is necessary to look not only at the terms of the condition but also at the reason which the section requires to be given in support of it. If the reason cannot fairly and reasonably be held to be capable of justifying the condition, then the condition cannot be said to be a valid exercise of the statutory power. For instance, if the reason given is the attainment of an objective, and compliance with the condition could not possibly attain that objective, the condition will be held bad because it was given for an unreasonable reason."

32.      Equally, both the condition and the reason must refer to the development requiring permission. In Newbury Council v. Environment Secretary [1981] A.C. 578, the House of Lords was considering a condition to a change of use permission which allowed the use of World War II hangars for industrial storage. The condition required the removal of the hangers after ten years. The House of Lords doubted whether permission was required in the first place and held, according to the headnote at para. (3) "[T] that in any event, even if planning permission had been necessary for the use by [the applicant] of the hangars, in the circumstances of the present case the condition for their removal did not fairly or reasonably relate to the permitted development and was therefore void." Lord Fraser of Tullybelton said at p. 609:

"… I am satisfied that, if the Secretary of State had correctly appreciated that a condition for removal of buildings attached to permission for change of use might be valid, he would nevertheless have certainly decided that in the circumstances of this case it was not sufficiently related to the permission and was therefore invalid. There was nothing that I can see about the change of use to a wholesale warehouse which required or justified a condition for removal of the buildings. The reason why the planning authority ordered their removal was to improve or restore the amenity of the neighbourhood by getting rid of ugly buildings. No doubt that was a very proper object, but it had nothing particularly to do with the use of the buildings as warehouses. The fact that the permission was in substance a temporary permission, as the Court of Appeal held, does not seem to me to be relevant to this matter."

33.      A similar conclusion was reached in a case which figured largely in the submissions of Ashbourne, The State (F.P.H. Properties S.A) v. An Bord Pleanála [1987] I.R. 698. There a permission for development was granted subject to a condition that the developer take elaborate steps in relation to the preservation of a historic house adjacent to the lands and under the control of the developer. On appeal, the Board imposed a condition that the house "was to be retained and restored and that the internal elements of the house were to be preserved, conserved or replaced in facsimile as their condition warranted …". The High Court upheld this condition but the Supreme Court allowed the appeal. Giving the judgment of the court, McCarthy J. first made the remarks mentioned above as to the necessity for strict construction and continued:

"No doubt, the curtilage of Furry Park House adjoins, abuts and is adjacent to the land to be developed and is under the control of the [developer] (see s.26, subsection (2)(a) ). I do not accept, however that the impugned condition is one for regulating the development or use of such land; further, in my view, it is not covered by the expression 'so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission'. I have no doubt it appears to the planning authority to be highly expedient to require the developer to expend a significant sum of money in preserving Furry Park House but that does not make it expedient for the purposes of or in connection with the authorised development…. In my view, to enable the relevant authority to impose a condition of the like created by condition 1 would require expression in the clearest terms".

34.      It will be observed that McCarthy J. faulted the condition, on two separate grounds: it did not relate to the "development or use" of the adjoining land and it was not a condition which could be regarded as expedient either for the purposes of or in connection with the authorised development. Nor did the learned judge consider that it could be justified under "the generality of sub-section (1)", but that it would require express language. In FPH, the Court was referred to a number of English authorities and this led McCarthy J. to hold that there was no particular significance attaching to differences between the English Planning Acts of 1947 and 1971 and the provisions of s.26. I would only add that, in my view, the English statutes, which are relevant in a number of the cases cited from that jurisdiction are if anything less restrictive of a planning authority than the Irish equivalent by reason of the absence in them of the provision that the authority "shall be restricted to" considering certain matters: the English equivalent is "shall have regard to".
35.      Ashbourne submitted that this authority was "in itself sufficient to decide the case", or at least the vires aspect of it.
36.      It may also be noted that, while the High Court had upheld the condition in FPH, it did so on the basis that "[T]The respondents could reasonably take the view that the preservation of Furry Park House would be an amenity to the authorised development in that it would improve the visual attractiveness of the whole area and in that it would also preserve for low density residential purposes the house itself and its site which immediately adjoins the area to be developed. The respondents could therefore reasonably conclude that a preservation of Furry Park House is expedient for the purposes of and in connection with the development authorised". (Emphasis added) No equivalent of the argument is open here.
37.      The dictionary definition of "expedient" is "advantageous". The alternative meaning "useful or politic as opposed to right or just" is presumably inapplicable to a statute conferring powers on a public authority. It seems extremely difficult to take the view that public access to the golf course would be in the interest of the amenity of the clubhouse. The Board did not contend for this proposition. Indeed, the Board contended that the phrase "expedient for the purposes of or in connection with" (the development) allowed restriction on the use of adjoining lands in order to preserve the amenity of the development. The permitting of public access to the lands appears to me to be an enforced separate development of them, rather than a restriction. "Development" includes any material change of use. As McCracken J. observed in a passage quoted hereafter, these conditions entirely alter the use of the golf course lands.
38.      I cannot find in the Board's written submissions a reference to FPH, or to another case to which we were referred: Hall and Co. Ltd. v. Shoreham-by-Sea Urban District Council and Anor. [1964] 1 All E.R. 1. There, a planning permission for a sand and gravel plant was subject to a condition that the developer would construct an ancillary road over the entire frontage of the site at their own expense and give a right of passage over it to and from other ancillary roads to be constructed on adjoining land. This road was anticipated to have a five year lifespan. The English Court of Appeal found the condition to be ultra vires and void for unreasonableness because it required the applicant to construct a road at its own expense and effectively to dedicate it to the public without the local authority being obliged to pay compensation. There was a "more regular course" for constructing a road at public expense under which compensation for compulsory acquisition would have to be paid, pursuant to the Highways Act, 1959.
39.      Although the decision of the Court of Appeal in this case was put on a slightly varying basis in the various judgments, I think the ratio is most convincingly expressed by Lord Pearson at p. 260 of the report. He said:-

"There remains, however, the question of vires. By the general law a person whose land is taken for the purpose of making a highway is entitled to compensation. The effect of condition 3 is to convert a portion of the plaintiff's land into a quasi-highway, and to give them no compensation.

I agree with Willmer L.J. that condition 3 is ultra vires because it is 'unreasonable' in the sense which has been explained in [the] cases. I should, however, be inclined to say that the element of ultra vires is to be found in the conflict with the general law relating to highways. The general words of [the statutory provision allowing the imposition of conditions] should not be interpreted as authorising a radical departure from the general law relating to highways".

40.      The approach in these cases suggests a number of thoughts in the context of the present case. Firstly, the disputed conditions are all within the scope of s.26(2)(a) in the sense that they relate to the development or use of lands adjoining the clubhouse development. If, however, they fail to meet the requirements of that sub-paragraph, that they be "expedient" not in some general planning sense but "for the purposes of or in connection with" the clubhouse development, I do not consider that the conditions can be justified by the general words of s.26(1). These words require that regard be had to the various matters set out in the sub-paras. of sub-s. (2). If, therefore, a particular condition is within the scope of one of these subparagraphs but does not meet its requirements, it would appear to contradict the intendment of sub-s.(1) to permit the condition to be imposed under the authority of general words.
41.      More fundamentally, an incident of the ownership of land, according to the general law, is the right to exclude the public from it, unless there is a right of way acquired in some legally recognised manner, or created by statute. The rights of public access acquired by the condition appear to me to be in the nature of a right of way or (to adapt the phrase of Pearson L.J. quoted above) a quasi right of way. If this is so, then the statutory power of creating a right of way to be maintained by the local authority appears to be "another and more regular course open to that body to ensure some right of public access". The existence of such an alternative course was the basis of Willmer L.J's decision that:-

"Bearing in mind that another and more regular course is open to the defendants it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended".

42.      There is of course a significant difference between a condition requiring the construction of a highway, or quasi highway, and one allowing public access. But that condition itself appears to me to be an onerous one, especially having regard to the fact that amongst the areas to which access is required to be given is a cliff face. Nor does it seem to me that any conceivable warning notice, of the kind suggested by the Board, could provide comfort to a landowner obliged to admit groups to or near a cliff face. Indeed the Board itself only advanced the idea in connection with the hazard from golf balls. If the County Council itself (as the statutory scheme would require) had to maintain a right of way above or to a cliff face, this would fairly be regarded as a very onerous project and one expensive and perhaps impossible to insure. Any landowner who had to allow public access to such a site would be manifestly exposed to a risk of liability which is very real.
43.      The Board, in responding to arguments based on Hall, relied on the decision of the House of Lords in Westminster Bank Limited v. The Minister for Housing and Local Government [1971] AC 508. There, the Bank's application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the Highways Act, 1959, but in that event would have had to pay compensation for the injurious effect on the bank's land. The bank sought to quash the refusal. It was held that although the local authority might have proceeded under the Act of 1959 they were entitled to refuse planning permission on the ground stated, even though the result would be to deprive the bank of compensation. But this result appears to have turned on a statutory provision, s.220 of the Town and Country Planning Act, 1962 which provided that "for the avoidance of doubt it is hereby declared that the provisions of this Act… apply… to any land notwithstanding that provision is made by any enactment in force at the passing of the Act of 1947… for…regulating any development of the land". Lord Dilhorne said:-

"It was strenuously argued for the appellants that the county council, having failed to prescribe such a line under the Highways Act, could not lawfully achieve the [same] result … by refusing planning permission for all development within [the relevant area]. The validity of this argument depends on whether the county council had been given by Parliament a choice of methods for preventing such development or were bound to exercise their powers under the Highways Acts. The answer to this question, in my opinion, is to be found in section 220 of the Act of 1962".

44.      In the absence of an equivalent statutory provision, and we were referred to none, the Westminster Bank case appears to be of little direct assistance in the present case.
45.      The reason given for the main access condition, condition 1, is "in the interest of amenity and orderly development and having regard to the planning history of the site". Is the condition and the reason within the statutory power provided in s.26(2)(a) in the sense of being a regulation of the development or use of the adjoining lands and being open to the description of being 'expedient for the purposes of or in connection with the development authorised by the permission', i.e. the clubhouse? It appears to me that these conditions fail to come within in the scope of sub-s. 2(a) on two separate grounds. As McCracken J. said in his judgment granting leave to apply for judicial review "These conditions do not merely affect the physical development of the lands, but also entirely alter the use of the lands". There is presently no use of the golf course lands for general public access for any purpose; it seems to me that the effect of the public access condition is to create a new use and not to control or restrict an existing one. It also appears to me that the condition of public access to the golf course cannot be described as expedient for the purposes of the clubhouse development. The clubhouse development is clearly a facility for golfers and no conceivable sense in which public access to the adjoining golf course is advantageous for the purposes of the clubhouse development has been suggested in argument. Equally, there is no sense in which public access to the golf course is expedient or advantageous in connection with the clubhouse development, and again none has been suggested. On the contrary, it was specifically envisaged by the Board that the public access condition might reduce the value of the development, but this was said to be justified on the basis that the general effect of the permission would enhance the value of the lands. To adapt what was said by McCarthy J. in FPH, I have no doubt that it appears to the planning authority to be highly expedient to require the developer to permit public access on to the Old Head of Kinsale, but that does not make it expedient for the purposes of or in connection with the authorised development. To adapt the words of Lord Fraser of Tullybelton in Newbury, even assuming the objective of public access to be a very proper object, it has nothing particularly to do with the use of the buildings as a clubhouse and equipment shed.
46.      The "amenity" referred to in the reason for condition (1) must, having regard to terms of s.26(2)(a), be regarded as a reference to amenity of the clubhouse. To construe the phrase more broadly would ignore the limiting words in that subparagraph. Moreover, the judgment of this Court in FPH makes it clear that the amenity of the proposed development, and not of any broader area, is what a condition under subparagraph (a) must address. Since "amenity" means "pleasant circumstances or features, advantages" (see Re Ellis and Ruislip Northwood UDC [1920] 1 KP 343) it is unsurprising that no argument suggesting that the condition could rationally be related to the amenity of the clubhouse was advanced. The concepts of the "expedient" and of "amenity", as those words are used in s.26, share the connotation of "advantage". In the case of a sub-s. (2) condition, the advantage must be to the proposed development and not to any wider area.
47.      The development on which the disputed conditions will have effect is not the clubhouse development at all, but the earlier development of the adjoining lands as a golf course. This was an exempt development, not requiring planning permission. I cannot see any power or vires to impose a condition which will have effect only on the exempt development of the adjoining lands, and which is incapable of any advantageous effect for the purposes of or in connection with the development to which the permission relates. It appears to me that there is substance in Ashbourne's submission that the question of public access to the Old Head has nothing whatever to do with the clubhouse, the access road or the equipment shed, which are the developments requiring permission or retention. There was no lawful public access to the Old Head of Kinsale before they were built and the purposes for which, or in connection with which, they were developed is wholly unrelated to the question of public access to the Old Head.
48.      Ashbourne's submissions extended to a number of colourfully expressed "floodgates" arguments: could a farmer overlooking the Blaskett Islands be compelled to allow public access to his lands as a condition of planning permission for the development of a new bathroom or kitchen? Put thus, the question seemed to verge on the absurd, but it was given force by the absolute failure of the Board to concede any limit in principle to the type of development which might give rise to a condition of public access. Counsel for the Board did concede that the nature of the development had to be considered and that "maybe" a condition of public access to lands would not be properly imposed in the case of the development consisting of a private residence. But even in that instance, he did not exclude it.
49.      In my view, the difficulty of laying down any limit in principle to a purported power to impose a public access condition arises from the fact that such a power is simply not within the scope of s.26. All the powers created by that section are limited or conditioned, either by the general words in s.26(1) or by individual limitations contained, in relation to specific types of condition, in the individual sub-paras. of sub-s. (2). Even if this access condition were a regulation of the use of adjoining lands, the capacity to impose it would still be conditional on its playing a role for the purposes of, or in connection with, the clubhouse development. A power thus limited is as far removed as can be from the claimed power to impose the condition because, having regard to the nature of the adjoining lands "public access for those without the wherewithal to play golf is reasonable". This does not appear to me to be a planning purpose of any sort.
50.      I am therefore of the view that the condition of public access is ultra vires the powers of the Board, and void. It follows that the other conditions which assume public access under condition 1 are also ultra vires.
Other contentions on validity
51.      In view of the above findings, it is unnecessary to consider whether the disputed conditions or any of them are also void on other grounds. One of these, unreasonableness, is closely related to the ultra vires question: certain of the English authorities, in particular, regarded the disputed conditions as ultra vires at least in part because they were unreasonable. However, since I have found that the access condition here is ultra vires in the more basic sense that the statutory powers of the Board simply do not extend to such a condition, it is unnecessary to discuss its reasonableness. Equally, it is unnecessary to discuss the allegations of vagueness and uncertainty in the conditions. I would only say that if a private developer sought permission for a development consisting of the admission of the public, for a consideration, to cliff face lands and ancient structures, I would imagine that (if the proposal were entertained at all) very stringent conditions would, in the interests of public safety, be imposed on any permission. These are wholly lacking in the present conditions, as is any but the vaguest definition of the mode of access. These observations are wholly independent of the exempt user of the lands as a golf course, which clearly produces additional hazards. Of these, the Board's inspector, Mr. Cranwell, said:-

"I consider that the operation of these lands as a golf course, due to the nature of the game, effectively excludes the public from those areas continuous to the playing area, and to try to impose any other regime where the public assume rights of access would give rise to conflict between the players and the public and could lead to situations of hazard arising to the public".

52.      In view of my findings on the vires question, it is equally unnecessary to consider whether, in the circumstances of the case, the Board were entitled to act otherwise than in accordance with the inspector's report. But I would remark, obiter, that Mr. Cranwell's point is manifestly a sensible and important one.
Estoppel and preclusion issues.
Res judicata 53.      The Board alleges that Ashbourne is not entitled to challenge the disputed conditions in these proceedings because the issue of the power to impose them must be regarded as conclusively settled by the decision of the Board in 1993, which was unappealed by Ashbourne. Accordingly, they were estopped from raising the vires issue, per rem judicatam.
54.      In this connection, reliance was placed on the decision of Gavan Duffy P. in Athlone Woollen Mills Company Limited v. Athlone Urban District Council [1950] IR 1. The judgment in that case provides many interesting sidelights on the early history of the planning process. For the purposes of the present action, however, the issue is simply stated. The company applied for a planning permission to reconstruct their mills which had been burnt down. This was granted by the defendant subject to three conditions. On appeal to the Minister, only one condition survived, which was a condition requiring a setback of twenty feet. Under the law as it stood, the company was entitled to compensation for the cost of this. However, its application to the Minister for such compensation was out of time, because its solicitor mistakenly concluded that the date of the decision imposing the condition was the same as the date of the letter informing his client of it. In the judgment of Gavan Duffy P., at p. 11 there is a strong suggestion that the company should have relied on this misleading aspect. However, they chose to act otherwise and lodged a further application for "… permission to build upon the identical plans which had supported their first application". The Court held that the company "had no right to make … a second application for a special permission to build upon the identical plans which had supported their first application, and that the defendants and the Minister were right in declining an application and an appeal which did not lie…" on the basis that the application had already been determined and was res judicata.
55.      The factual differences between that case and the present are obvious. Not only was Ashbourne entitled to make the 1997 application for permission and retention, it was actually constrained to do so by the attitude and actions of the County Council. Ashbourne attempted to persuade the Council that there was "no material change in the overall effect of the building" by reason of the variations between the earlier permission and the development as completed. The Council, however, as is stated at p. 12 of the Board's written submissions, took the "view that the development as constructed constituted a material breach of the planning permission and required a retention application". Indeed, the County Council served warning notices under the Act of 1976 on the applicant in February, 1997. It is thus quite clear that the County Council did not regard a development for which permission had been granted in 1993 and that for which retention and other permissions were sought in 1997 as identical or near identical or as differing only in trivial or unimportant respects from that for which permission had been granted.
56.      Moreover, the Board did not take the view that the issue of the access conditions had already been determined in a binding manner. On the contrary, they considered the question on the merits and their inspector conducted a site inspection on the 1^st October, 1997. Portion of his report has been quoted earlier in this judgment. His recommendation following the site inspection was that condition 1 (providing for general public access) and condition 3 (providing for charges) be omitted and that condition 2 (providing for provision of a gravel path and picnic area) and condition 8 (providing for proposals in relation to the castle) should be retained.
57.      In light of the view which I have taken on the vires issue, I have not found it necessary to discuss whether the Board, on the facts, were entitled to depart from the inspector's recommendation. The Board contended, on that point, that there was ample material in the inspector's report to justify the conclusion at which they arrived, and that they were not bound by his recommendations. For the purpose of the res judicata argument, however, what is significant is that the inspector was sent to make an inspection and to formulate recommendations and that his report and recommendations were then considered on the merits. Arising from this, somewhat differently phrased conditions emerged as compared with those of 1993. This is not surprising since much of the material in the inspector's report was new. Most significantly, the golf course development had not actually taken place in 1993: the inspector observed golf being played in 1997 and based some of his recommendations on what he saw.
58.      If the 1993 decision was in all respect a res judicata it must be regarded as binding on both parties. In Athlone Woollen Mills, the appellate authority, the Minister, simply refused to entertain the second application on the basis that he and the local authority were bound by the result of the first. That is not what happened here, and if the Board's present contention is right then the whole elaborate procedure on which it embarked was redundant. The reality is neither side regarded the question of the conditions as res judicata, and I believe that they were right in this.
59.      One of the later cases on which the appellants relied, The State (Kenny and Hussey) v. An Bord Pleanála (High Court unreported Carroll J. 23^rd February, 1984): Supreme Court (unreported 20^th December, 1984) illustrates the fallacy of the Board's position. In that case, Carroll J. accepted, on the authority of Athlone Woollen Mills that res judicata, with consequent estoppel, could arise from a planning decision. However, she declined to hold that this estopped the Board from granting permission for a single storey dwellinghouse in a particular location on the basis that it had previously refused permission for another single storey dwellinghouse there. The learned judge said "But I am not satisfied that the order of the 25^th February, 1982 concerned the same matter as the order of the 20^th May, 1983… I could not hold that the refusal of permission for a particular single storey house on the 25^th February, 1982 was a refusal covering all single storey houses".
On appeal, the judgment of this Court was given by McCarthy J. He said:-

"The learned trial judge expressed her opinion that the principle of res judicata can be applied to a decision of the Board citing with approval the views of Gavan Duffy P. in [Athlone Woollen Mills]. On the facts she rejected the application of the principle so as to benefit the prosecutors. In my view, she was correct in that conclusion. I do not find it necessary to express a view as to whether an application of res judicata in respect of such decision [arises] although I find it difficult to see how a planning authority can be permitted to come to a new or different view when circumstances do not change".

60.      I agree with the judgment of McCarthy J. and would venture to gloss it by saying that a decision of a planning authority is capable of giving rise to a res judicata, but that not every decision will do so. For example, the earlier decision of the Board here that there were no public rights of access to the lands prior to the commencement of the development is a decision on a mixed question of fact and law as it existed at a particular time. It was taken after the matter had been the subject of submissions by those interested in it and taken by the Board as an impartial arbiter. That is not what happened on the decision to grant planning permission in 1993: the question of vires to require public access was never raised or discussed, and a point not argued is a point not decided. The condition was imposed by the County Council and was not the subject of appeal. I cannot see how the mere fact that the County Council decided to impose the condition without any inter partes discussion of their power to do so can be said to give rise to a res judicata, or an omission to appeal their order to confirm it. Certain observations quoted in the next section of this judgment from Professor Scannell's book indicate the unwisdom of relying for any purpose on an omission to appeal a condition.
61.      The case most heavily relied upon by the Board on res judicata was the decision of the House of Lords in Thrasyvoulou v. The Secretary of State for the Environment and Ors. [1990] 2 AC 273. There, a building owner appealed against enforcement notices, which alleged that there had been a material change of use of his buildings, in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the buildings were in hotel use. It was common case that the use of the buildings did not change between 1982 and 1985. Nevertheless, in the latter year the planning authority issued further enforcement notices alleging that there had been a change of use from hotel to hostel. In those circumstances it was held that the unappealed inspector's certification of 1982, and the concession that there had been no change of use between 1982 and 1985, gave rise to a res judicata against the planning authority. Lord Bridge said, at p. 289:-

"In relation to adjudications subject to a comprehensive

self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions".

62.      I have no difficulty with the proposition thus stated, but I do not think it is of relevance to the present case. The issue that was res judicata in that case was the established use of the buildings as a hotel on a particular date in 1982. Obviously, that user could have changed between 1982 and 1985, but it was specially conceded that there had in fact been no change. The matter had been fully discussed in 1982 and the inspector had himself seen the actual use of the premises. The planning authority had been involved in the dispute as a party or quasi-party, not as arbiter.
63.      I conclude that Ashbourne is not estopped per rem judicatam from challenging the vires to impose the disputed conditions.
Discretionary aspects.
64.      In the course of his judgment in this case, the learned trial judge observed that judicial review was a discretionary remedy. He continued:-

"The fact that the disputed conditions largely consist of facilities on offer from the Applicant from 1992 until 1997 and the failure of the Applicant to challenge the imposition of conditions first imposed in 1993 are matters which strongly suggest the Court should not intervene unless a very high threshold is crossed in this case".

65.      The learned trial judge cited with approval portion of the judgment of Lloyd L.J. in City of Bradford Metropolitan Council v. Secretary of State for the Environment [1986] JPL 598 at p. 599:-

"The fact that the Applicant had suggested a condition or consented to its terms was, of course, likely to be powerful evidence that the condition was not unreasonable on the facts, since, as in the case of any commercial transaction, the parties were usually the best judges of what was reasonable. So he did not think there was likely to be any great rush of cases in which the developer obtained planning permission by consenting to a condition, and then appealed successfully against the imposition of a condition to the Secretary of State on the grounds that it was manifestly unreasonable. A successful appeal in such circumstances was likely to be rare. But he did not think it could be ruled out as a matter of law".

66.      Despite this, the learned trial judge did not hold that Ashbourne were in any way precluded from seeking relief or that they should be refused relief in the discretion of the Court.
67.      The Board appeals this decision, emphasising that "the argument put to [the learned trial judge] by the respondents had been not merely a delay argument or a time point but an argument based on the acquiescence of Ashbourne to the imposition of these conditions over what in planning terms was a very considerable period of time".
68.      On the basis of this acquiescence, the Board says, Ashbourne should be denied relief in the discretion of the Court, or should be regarded as estopped from seeking relief in relation to the disputed conditions.
69.      Ashbourne joined issue vigorously with this suggestion. They stoutly maintained that the conditions were different to those originally imposed, that this was their first opportunity to challenge the actual conditions attached to the planning permission, and stated that they were not at all opposed to public access but it would have to be public access at their discretion: this arose from the nature of the golf course development, in terms both of public safety and of commercial viability.
70.      I do not find it necessary to go into the factual dispute between the parties just summarised. I take as a starting point that the public access conditions have been found to be ultra vires the Board. In Greendale Building Company v. Dublin County Council [1977] IR 256, Henchy J. giving the judgment of this Court said:-

"The general rule is that a plea of estoppel of any kind cannot prevail as an answer to a well-founded claim that something done by a public body in breach of a statutory duty or limitation of function is ultra vires".

71.      In that case, a local authority had served a notice to treat on the company. This action presumed the validity of a previously made compulsory purchase order: the order was challenged by a third party and did not become operative for more than two years. On the failure of the challenge, the local authority served a second notice to treat. The Company was keen to set up the first notice, because the value of the land was greater at the date of its service than at the later date. Accordingly, it contended that the local authority was estopped by the service of the first notice and by attendance at an arbitration consequent on the first notice, from setting up the validity of the second notice. This contention was rejected in the passage quoted above. It is, however, premised on the assumption that it is a substantive decision (and not some incidental matter of little materiality) that is ultra vires. That much is specifically stated in the part of the judgment of Henchy J. immediately following the passage quoted above. I would add that an intermediate situation may arise in some cases. If the defect in vires related to something more marginal than the essence of the action which is impugned – for example its scale or extent rather than its nature – there may be greater scope for the operation of estoppel. I do not intend in this judgment to address that situation, which must await a case where it is specifically raised. The defect in vires in this case is a radical one, going to the essence of the conditions which are challenged.
72.      As a result of my findings on the vires question, this is a case of

"a well-founded claim that something done by a public body in breach of a … limitation of function is ultra vires".

I am of the opinion that the specific case of planning conditions which are ultra vires furnish a good example of the principle underlying the rule so pithily stated by Henchy J.
Aspects of planning conditions.
73.      The statutory source of the power to impose conditions on planning permissions has been set out in an earlier section of this judgment. I now wish to refer to certain practical aspects of the imposition of such conditions. As it happens, the focus of my concerns has been perfectly expressed in a leading text book on the subject. In Environmental and Planning Law in Ireland (Roundhall Press, Dublin, 1995) Professor Yvonne Scannell says at pp. 205-206:-

"It should not be assumed, as it sometimes is, that the wide discretion given to planning authorities to attach conditions under section 26(1) gives them carte blanche to exact benefits in cash or in kind from the developer in order to reflect the profit which the planning permission confers on him or to further some socially desirable objective promoted by the planning authority".

74.      Having referred to a number of authorities, the learned author continues as follows:-

"Of course, in many cases, developers 'agree' to planning gain and do not appeal ultra vires conditions requiring them to provide facilities or services which were not necessitated by or which did not facilitate their development. But there have been many instances when developers have been pressurised by conditions into conferring benefits on local authorities or local communities which would almost certainly be declared ultra vires if the developers had the courage, finances or time to challenge them in the courts".

75.      Two things, in particular, underlie the state of affairs summarised by Professor Scannell in the last paragraph. The first is that a local authority, like a court of limited jurisdiction or other decision-making bodies, may be concerned with matters which are hugely important to persons who come before them. In such circumstances those who must appear before or apply to such a tribunal may be prepared to offer or agree to payments or other conditions which would be wholly outside the tribunal's jurisdiction to impose.
76.      Secondly, if such a body accepts what is offered or takes advantage of the acquiescence of a person before it in conditions which it could not impose, that fact will become known to professional people in the relevant area. They, in turn, seeing that such offers or acquiescence had produced a successful outcome in previous cases, will advise clients with new business to consider similar offers or acquiescence. If this process continued, it may lead to the situation in which a body's apparent jurisdiction, conferred by law, is only a very imperfect guide to its actual practice. Only an insider or a shrewdly advised person would know the true position and only a wealthy applicant could take advantage of it.
77.      For example, in R v. Bowman [1898] 1 QB 663, licensing justices granted a liquor licence on condition, inter alia, that the applicant should pay Stg. £1,000 (then an enormous sum) "in reduction of the rates". This was quashed by a divisional court of Queen's Bench, Wills J. saying:-

"If the attachment of such a condition were allowed to pass without objection there would soon grow up a system of putting licences up to auction - a system which would be eminently mischievous and which would open the door to the gravest abuses".

78.      The significance of this case is that, even if the licensee were perfectly willing to pay Stg. £1,000 to the public purse as a condition of his licence, and even if he agreed in solemn form to do so, a condition to that effect would still be objectionable. Firstly, it would mean that an applicant for a licence who was well provided financially would be at an advantage as against one who had no surplus after he had bought the premises and applied for the licence. Secondly it would involve a serious absence of transparency in the licensing process: the real requirements for a licence would not be those laid down in the publicly available legislation but those on which the licensor and a wealthy applicant might agree after a process not unlike a form of auction. Thirdly, if such a practice were permitted it would involve the licensing authority or similar bodies using a statutory power to exact a form of payment in cash or kind which the legislature did not envisage.
79.      A somewhat similar situation arose in City of Bradford Metropolitan Council v. Secretary of State for the Environment and McClean Homes Northern Limited [1986] JPL 598. There, a planning permission for a residential development incorporated a condition that the developer widen an existing road by one metre and perform associated remedial works. The road in question was in the front of the development and extended beyond it to a junction. The Secretary of State, exercising an appellate function, held that the condition was ultra vires in so far as it related to the land not owned or controlled by the developers. Furthermore, it offended a circular issued by the Secretary of State (para. 63 of Circular 1/85). The Council appealed to the High Court without success and thence to the Court of Appeal. There, Lloyd L.J. was reported as saying:-

"It had usually been regarded as axiomatic that planning consent cannot be bought or sold. As a broad general proposition, that must be true. However [counsel for the Secretary of State], states the principle more narrowly, when applied to the facts of the present case. He asks us to say first, that a planning condition which requires the developer to carry out or fund a public function of a Planning Authority as the price of getting that planning permission is always unlawful and, secondly, that the degree of acquiescence by the developer in the condition so imposed was wholly irrelevant".

80.      Some of the discussion in the Court of Appeal centred on whether the substance of the condition would have been lawful if incorporated as a statutory agreement under the English planning code. After a discussion of both Hall v. Shoreham and Newbury District Council, both cited above, it was held:-

"If the proposed condition is manifestly unreasonable, then it was beyond the powers of the Planning Authority to impose it; and if it was beyond the powers of the Planning Authority to impose the condition, then it is beyond their powers to agree to impose it even if the developer consents.... If the condition is manifestly unreasonable the willingness of the developer is irrelevant. Vires cannot be conferred by consent" . (Emphasis in original)

81.      There then follows the passage cited by the learned trial judge, and quoted above, from the Bradford case. The report then continues:-

"For the analogy with an ordinary commercial transaction is not complete. The 'parties' to a planning application are not in the same position as the parties to a commercial contract. For in addition to the interests of the 'parties', there is the public interest in securing the fair imposition of planning control as between one developer and another" [Lloyd L.J. then cited R v. Bowman above].

He concluded:-

"So there is a public interest as well as the interests of the

'parties' ".

82.      As these cases and another yet to be cited show, not merely will an applicant for a licence or permission acquiesce, in some circumstances, in a void condition; he may even suggest it. If he knows, or thinks he knows, that the authority which holds his fate in his hands has some particular concern, preference or project, he may offer to fund it in its entirety even if it is barely related, or wholly unrelated, to the development he proposes. It may be quite unnecessary for the authority formally to ask for anything: the merest hint about their wishes or concerns, perhaps in quite informal circumstances, may be sufficient. This tends to discriminate in favour of the wealthier, as opposed to the poorer developer, and in favour of the well connected one rather than one who relies on the ostensible criteria.
83.      The second major point which must be borne in mind in dealing with conditions of this sort is that the conditions will affect not only the developer alleged to have proposed them or acquiesced in them but anyone subsequently taking the land.
84.      In the United Kingdom, there was a legislative and a ministerial reaction to the Hall, Newbury and Bradford cases. The Department of the Environment published a circular in 1991 saying that "Planning obligations should not be used to extract from developers payments in cash or in kind for purposes that were not directly related to the development proposed but were sought as the price of planning permission". There was also a statutory initiative in the form of s.106 of the Town and Country Planning Act, 1990, as amended. This permitted a person "interested" in land to reach an agreement with the planning authority restricting its development in any specified way, or requiring specified activities to be carried out on the land, or requiring it to be used in a particular way. This, it is thought, reflected the fact that the statutory power to impose conditions on a planning permission, though broadly couched, had long been held not to be so broad as it seemed. The Act of 1990 raised the question as to whether the same rules applied to planning obligations, as the agreements under s.106 are statutorily called.
85.      This question and others were discussed in Tesco Stores Limited v. The Secretary of State for the Environment [1995] 2 All ER 636. Three huge companies, two of which later became involved in litigation, wanted to build a superstore on their respective sites on the outskirts of a town called Witney, Oxfordshire. Tesco, unlike its surviving rival, was prepared to pay six and a half million pounds, being the price of a link road. The inspector decided in favour of Tesco's plan, but the Minister on appeal decided in favour of its rival (Sainsburys). Tesco then complained that the Minister had failed to give due weight to their offer to fund the road.
86.      For the purpose of the present case, the decision of the House of Lords is of limited direct value because it decided that the Minister had not failed to consider the funding proposal. This leaves one to speculate whether in failing to avail of it he had regard to the terms of his circular about planning obligations not being bought and sold, or having the appearance of being so. But the speech of Lord Hoffmann, where he reviews the earlier cases in depth and explains how the constraints imposed by Hall led to the development of planning obligations, not subject to the same processes of appeal as planning conditions, casts a useful if oblique light on the position of ultra vires conditions. He concluded that planning obligations could be used, quite legitimately, to cause the developer to contribute to the external costs of his development, thereby achieving what would be unobtainable by condition in view of the line of authority whose immediate starting point is Hall. He said at
p. 654:-

"Parliament has therefore encouraged local planning authorities to enter into agreements by which developers will pay for infrastructure and other facilities which would otherwise have to be provided at the public expense. These policies reflect a shift in government attitudes to the respective responsibilities of the public and private sectors. While rejecting the politics of using planning control to extract benefits for the community at large, the government has accepted the view that market forces are distorted if commercial developments are not required to bear their own external costs".

87.      It thus appears that the neighbouring jurisdiction has evolved a via media between planning conditions, with their requirement to relate to the permissions sought in a reasonably direct fashion, and the less directly related statutory agreements. These, however, are still envisaged as relating to the "external costs" of the development. Not even on this latter criterion could a condition of public access qualify. Nor, as we have seen, was legitimate public access to the Old Head of Kinsale a cost or a casualty of the exempt golf course development.
Conclusion on discretionary factors.
88.      I would not refuse relief in the exercise of discretion in the circumstances of the present case. First, the impugned conditions are ultra vires and against that most radical form of invalidity estoppel, acquiescence or consent does not avail. It is just that this should be so, in the case of a condition, which however invalid will run with the land. Secondly, it is particularly important that this principle be maintained in the public interest, so as to assert the principle of fairness as between one applicant for an identical or analogous permission and another, and so as to safeguard the integrity and transparency of the administration of the planning code.