THE SUPREME COURT
[Appeal No. 2007/1474 JR]
MacMenamin J.
Laffoy J.
Dunne J.
MARTIN RYAN & MICHAEL RYAN
APPELLANTS
AND
CLARE COUNTY COUNCIL
RESPONDENTS
AND BY ORDER
EITHNE O’BRIEN, PATRICIA CRONIN, DONAL STEWART AND MARIE STEWART
NOTICE PARTIES
Judgment of Mr. Justice John MacMenamin dated the 11th day of November, 2014
1. The appellants sought a declaration and a mandatory order in the High Court to the effect that the respondent (“the County Council”) be deemed, pursuant to s.34(8)(f) of the Planning & Development Act 2000 (“PDA 2000”), to have made a decision to grant planning permission in respect of a development proposal submitted on the 2nd May, 2007, relating to works on a property on Liscannor Road, Lahinch, Co. Clare. The High Court judge held that the application for judicial review was made within time. However, he refused relief to the appellants, essentially on discretionary grounds; holding that the court was entitled to refuse relief by reason of the fact that, to allow the project to proceed without regard to the Local Area Development Plan for Lahinch would be an unlawful exercise of the court’s discretion.
2. The appellants (“The Ryans”) obviously do not argue with the judge’s finding on the time issue which was in their favour, but now submit that the judge erred in relation to the exercise of his discretion refusing relief. They contend the High Court was actually under a duty to make a declaration, and to grant a mandatory order in circumstances described later in this judgment. The issues raised in the appeal herein concern matters which pre-date the amendment of PDA 2000 by the Planning & Development Amendment Act 2010 (PDA 2010), brought into effect by the Planning and Development (Amendment) Act 2010 (Commencement) Order (S.I. No. 132 of 2011) on March 23, 2011 (see particularly s.23 of the amending Act). The judgment also pre-dates the judgment of this court in Abbey Drive Developments Ltd. v. Kildare County Council [2010] 1 ILRM 187. As well as hearing comprehensive submissions from the main parties, counsel on behalf of the first named notice party made submissions seeking to invoke rights under Article 6 and 8 of ECHR, which were adopted by Mr. James Connolly, S.C. who appeared on behalf of the County Council, and the solicitor acting for the second named notice party. The first issue which falls for consideration is the time-limitation issue.
The Relevant Statutory Position
3. It is important to make clear at the outset that it was common case that the relevant time limit for bringing this application for judicial review was the three month period prescribed in Order 84, Rule 21 RSC, as it stood in 2007. Thus, while other statutory limits are now considered in this judgment, it is by way of context only. As the statute law stood at the time of the application for planning permission, s.34(8)(a) of the PDA 2000 prescribed a time limit of 8 weeks, within which a County Council should make an initial decision on a planning application. Failing a decision being made, s.34(8)(f) came into operation, and a “default planning permission” might arise. Insofar as is relevant, s.34(8)(f) PDA 2000 provides that, subject to a range of conditions, not material here;
“(f) Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.” (emphasis added)
4. As the Council failed to make a decision, the appellants sought both a declaration and an order of mandamus directing the County Council to grant planning permission in respect of the development of two two-storey houses, pursuant to s.38(11) of the PDA 2000. As this judgment concerns a legal issue of some historical controversy, some further background description is necessary.
Default Planning Permission
5. In 2007, a failure by a local authority to make a decision resulted in the consequence that a decision to grant was deemed to have been made, regardless of any merits and objections. The operation of what were termed ‘default planning permissions’ was much criticised by judges, legal scholars, and commentators. These criticisms had considerable substance. The system created a disjunction between cause and effect. The ‘cause’ was that a planning authority had failed, or neglected, to perform its duty to make a decision which might be to grant, to refuse or, alternatively, to grant permission subject to conditions. Instead, there was simply a “deemed decision” to grant. The planning authority suffered no sanction for having failed to perform its duty. In fact, the effect was only felt by objectors, very often (as here) neighbours, such as the notice parties herein, who might have to live with the consequence that a planning application, not subject to any conditions, was “deemed” to have been the subject of a favourable decision by the local authority. The rationale for the existence of such provision is not easy to comprehend. Why should the victims of maladministration, be confined to those individuals who had no responsibility for what went wrong, and who had most to lose in terms of amenities or property values. Perhaps, the public at large might be affected? In Planning & Development Law, 2nd Ed., (Thompson Round Hall, 2007), Garrett Simons, S.C. described the provision as it then stood in these terms:
“The existence of this default mechanism is indefensible. There is nothing to be said in its favour: it is inherently unfair; unpopular with judges; disproportionate to the mischief which it is intended to remedy; and inconsistent with other aspects of the PDA 2000.”
6. In expressing these sentiments, the author was doing no more than reflecting views which Blayney J. had expressed, perhaps somewhat less trenchantly, in Molloy v. Dublin County Council [1990] 1 I.R. 90, at 97. There that judge pointed out:
“The purpose (of the default mechanism) is to ensure that planning authorities make a decision on planning applications within a reasonable time of their being submitted. Nobody could take issue with that. But what seems both illogical and objectionable is the nature of the sanction imposed in the event of the failure of the planning authority to communicate its decision within two months. One would expect the planning authority to be penalised for its failure, but it is not. It is the community that is penalised because a permission, which there may have been good grounds for refusing in the public interest, is deemed to have been granted. It would seem to be a relatively simple matter to devise some alternative sanction which would achieve the same desirable purpose of having planning applications expeditiously dealt with, but which would not have the same potentially serious consequence for the community in the event of a failure on the part of a planning authority through error or inadvertence to comply with the statutory time limit, and I would hope that the legislature might give serious consideration to this suggestion.”
7. Similar reservations were expressed by Clarke J. in Maye v. Sligo Borough Council [2007] 4 I.R. 678, an authority referred to later. Both Abbey Drive, referred to earlier, and Maye are relevant to this appeal, because both lay emphasis on the fact that, whatever reservations one might feel on the law as it then stood, judges cannot be legislators, and should not impermissibly resort to judicial discretion, in order to avoid the legal consequence of a default permission.
8. A further issue, also touched on later in this judgment, is whether the section, as it then stood, involved a “determination” of civil rights, within the meaning of Article 6(1) of the European Convention on Human Rights (“ECHR”), property rights under Article 1 of the First Protocol to the ECHR; or in some cases, privacy rights under Article 8 of the ECHR. All of these considerations, some commentators suggested, would have necessitated a fair hearing on the question of whether or not actually to grant such a permission involving a balancing of the rights and interests involved.
9. Be that as it may, the duty of this Court is to apply the law as it stood at the time of the relevant planning application. Doubtless, based on the concerns just described, the learned trial judge declined to grant relief.
Issues for Determination
10. The issues for determination in this appeal include:
• Whether the appellants’ application for leave to apply for judicial review was made ‘promptly’, under the rules of court. This invites analysis of when, precisely, the grounds for the application first arose;
• Whether the appellants are precluded from bringing their application for, or obtaining relief by way of, judicial review, on the ground of delay?;
• Whether as a matter of discretion, this application for judicial review should be refused by reference to the possible rights of the notice parties?;
• Whether, in the absence of a finding that the application involved a material contravention of the development plan, the appellants were necessarily entitled, as of right, to obtain by default a decision to grant planning permission with respect to their planning application?;
• Whether the appellants’ application for planning permission in fact involved a breach of the local area plan applicable to the locality of the proposed development?;
• If there was such a breach of the local area plan, whether any such breach was material or sufficient to warrant declining relief?;
• Whether, regardless of materiality, the statutory requirements, having regard to such local plans, precluded the High Court from directing the respondent to issue a default planning permission in respect of a proposal which it was suggested might not accord with the provisions of the lap?.
11. These questions are somewhat interwoven, and thus may be conveniently considered under three broad headings; first, the time/remedy issue; second, judicial discretion; and third, insofar as it properly arises, the rights of the notice parties. The notice parties participated in the appeal to the extent outlined earlier.
12. Some indication of the degree of ‘linkage’ between the issues can be gleaned from the fact that the time limits are, in fact, governed by the appropriate remedy; and the issue of judicial discretion (said to have arisen by reason of possible non-compliance with the Local Area Plan), was, at least, informed by the High Court judge’s concern as to the potential for the denial of rights of the public and third party objectors in a default permission.
The Time/Remedy Issue
13. Counsel for the County Council submits that the application now made for mandamus was made outside the time prescribed by Order 84, Rule 21 RSC. That Rule prescribes that applications shall be made within three months from the date when grounds for the application first arose. It is necessary to set out the chronology and circumstances from the planning application to the leave application.
Chronology
14. The planning application was made in writing on the 2nd May, 2007. The Council accepts that, apparently for technical reasons which remain opaque, it failed to make a decision within the statutory period of eight weeks from the date of receipt of the planning application. The statutory period for a decision on the planning application, therefore, expired on the 26th June, 2007.
15. As the application for leave for judicial review was not brought until the 19th November, 2007, the County Council at first made the case that the application was out of time (insofar as the matter might have been governed by PDA 2000), or, alternatively, relied on delay claiming the application was out of time under the Rules of the Superior Courts. It is accepted now that the matter is governed by the Rules, and not by the provisions of PDA 2000. Both these time limits will be considered in the context of delay.
The Form of Remedy
16. That time issue is linked to the form of relief appropriate in applications of this type. The appellants sought mandatory relief. This, of course, would necessitate a determination that the respondent County Council owed a legal duty to the appellant. This submission requires the Court to consider whether what is in question under s.34(8) is part of a two-step process comprised, first, of a failure to decide, and then, second, requiring a formal demand to comply with a statutory duty, or whether, alternatively, the failure of the County Council to make a decision was, ipso facto, a breach of duty, requiring no such formal legal demand. The appellants say it is a two step process: that the County Council, having failed to make a decision permitting the project, must then be compelled, but on a formal demand, to make a grant of planning permission pursuant to s.34(11)(a) PDA 2000. That subsection provides:
“(11)(a) Where the planning authority decides under this section to grant a permission-
(i) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(ii) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals-
(I) it is withdrawn, or
(II) it is dismissed by the Board pursuant to section 133 or 138 , or
(III) in relation to it a direction is given to the authority by the Board pursuant to section 139 , and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.” (emphasis added)
17. Sections 133, 138 and 139 of the Act are not material to consideration. At first sight therefore, there is both a decision to grant permission, and then it is followed by the making of a grant. One can, therefore, reach a tentative hypothesis this was a two step process. An entitlement to carry out a development would appear to follow on from a grant, not from the primary decision. The permission is simply what it says, a decision to grant permission; it is the grant which, from a planning law perspective, renders lawful the carrying out of the development. Is this hypothesis confirmed by further analysis?
18. In what follows one cannot avoid observing a certain incongruity in the case. The County Council relies on its own default in order to place a duty on the appellants. I emphasise that it was ultimately accepted that the time limitation was that set out in the Rules of the Superior Courts, that is, three months.
19. By statute, (insofar as a time limit under PDA 2000 might have applied), the time permitted for judicial review, by way of certiorari, of a decision by a planning authority would be eight weeks; (see s.50(3) PDA 2000). The County Council’s case was that its duty was simply to make a decision on the application by the 26th June, 2007, and thus, whether under statute or the Rules, the time ran from then. The Council points to the fact that the appellants’ planning consultant deposed in affidavit to having contacted the Council’s planning department on the 27th June, 2007 enquiring as to the outcome of the planning application, and that he was advised that no decision had issued by that date. But was there ever in fact even a primary decision in the sense intended by the statute?
20. Relying on s.34(11)(a) quoted above, the Ryans contend that it was not until the 24th July, 2007, (being the expiry of the statutory 4 week time limit for the bringing of an appeal) that a right even to call for the grant of a permission by default was vested in them. In response, the Council contends that, by the afternoon of the 3rd July, 2007, the appellants were aware through their lawyers, that the Council had not made a decision on the planning application within the 8 week statutory period specified by s.34(8)(a) PDA 2000. But, the appellants rejoin, the expiry of the four week ‘appeal period’, prima facie, can not give rise to a grant of permission either
21. In summary then, the Council at first contended in this appeal that the “grounds for the application” for a judicial review arose first, either on the 26th June, 2007, being the date of its failure to carry out the relevant duty which was amenable to challenge by judicial review; or alternatively, its failure was either, (a) to issue to the appellants a notification of a decision to grant planning permission by default within 3 working days of the 26th June, 2007, (see s.34(8)(f) PDA 2000; and Article 31 of the Planning & Development Regulations 2001 (S.I. No. 600 of 2001)), (as amended by the Planning and Development Regulations 2006 (S.I. No. 685 of 2006)), which provide that notification of a decision by a planning authority in respect of an application shall be made within three working days of the day of the decision); or, (b), to make the grant of planning permission to the appellants after the expiry of the statutory 4 weeks for an appeal, that is, the 24th July, 2007 (see s.34(11)(a)(i) PDA 2000). In either event, Council contended, the Ryans were out of time, as a leave application was not made until the 19th November, 2007.
22. Alternatively, the Council relied on a further line of defence still relevant on the general issue of delay. It said that the Court should also have regard to the fact that, had (hypothetically) a decision either to grant or refuse the application for permission actually been made on the 26th June, 2007, then, pursuant to the provisions of s.50(4)(a)(i) PDA 2000, the appellants, (assuming the matter has been governed by PDA 2000), in the ordinary course of events, would have had to make an application for leave to apply for judicial review within a period of 8 weeks, beginning on the date of the decision (i.e. by 20th August, 2007). The Council submits that, where a planning authority decides under s.38 of PDA 2000 to grant a permission, the period for the taking of an appeal to An Bord Pleanála from that decision would have expired on the 23rd July, 2007; so that, even were the court to adopt an ‘expansive’ approach, insofar as the claim for mandamus is concerned, the Council’s obligation under s.34(11)(a)(i) was to make a grant of permission “as soon as may be” after the expiration of the period for the taking of an appeal (i.e. as and from the 23rd July, 2007). It is said this ‘crystallised’ the period for judicial review time purposes.
23. Thus, the Council submits, on the assumption that time began to run against the applicants from any one of those points, and even allowing that it was for a period of 3 months under the Rules for bringing judicial review proceedings, that time must have expired on the 22nd October, 2007. But the application for leave was not made until the 19th November, 2007. Was it out of time?
The Discretionary Issues
24. The County Council also looks to three “discretionary” issues which form part of the circumstances which, it says, should also go to the manner in which the court’s discretion should be exercised. The Council says that, added to, or as a component of, the elapse of time, any one, or all, of the following three considerations would have warranted refusal of relief:
(i) First, while the Council’s solicitors advised the Ryans’ solicitors to write to them on the 9th July, 2007; more than 7 weeks expired thereafter. It was only on the 28th August, 2007 that the appellants’ solicitors first wrote to the County Solicitor asserting that a default permission had arisen. The County Council did not receive them until 30th August, 2007. It is said there was delay on this basis.
(ii) Second, when the application was opened before the High Court in the full judicial review hearing, counsel for the Ryans appraised the court that a deliberate decision had, in fact, been taken not to seek any response from the Council until after the expiration of the period allowed to notice parties for bringing an appeal to An Bord Pleanála as provided under s.34(11) PDA 2000. The County Council says this was a conscious and deliberate “inaction” on the appellants’ part in order to go beyond the expiration of any potential entitlement that the notice party - objector might have had.
(iii) Third, it was readily apparent from a letter from the County Council’s solicitors dated the 17th September, 2007, that the Council was not amenable to being regarded as having actually granted a default permission to the applicants on the 26th June, 2007; yet, despite that, the applicants allowed a further period, in excess of two months to expire before the application was made to the High Court for leave to apply for judicial review.
25. Taking these additional discretionary factors into account, it is said, that having regard to the provisions of Order 84, Rule 21(1) of the Rules of the Superior Courts, the appellants cannot be said to have met their primary obligation of having made the application “promptly”, nor can it be said that the application was made “in any event within 3 months of the date when grounds for the application first arose”, even allowing for some indulgence to the appellants by disregarding particular time periods.
26. In response, the Ryans submit that they had carefully to consider the precise nature of the remedy which they would seek by way of judicial review. They contend that, in order to determine the time limitation period, it was necessary to consider precisely the process which was involved in the grant of permission; and that, by default, they received a decision to grant permission, but they did not receive thereby a grant of permission. They submit it was necessary for the planning authority to make a grant of permission under s.34(11)(a)(i) PDA 2000 (cited earlier), and they were not entitled to proceed with the development until they actually had a grant of planning permission. For this reason, they say what was required was that they should bring mandamus proceedings to compel the planning authority to make a grant of permission.
27. For reasons now outlined, I accept the appellants’ submission and, the logical consequences which, in law, must inevitably flow from such acceptance.
28. It is certainly the case that a decision by default is a “deemed decision”. However, this does not confer any rights to carry out a development, unless and until a grant of permission ultimately issues. In considering delay, therefore, time cannot be regarded as having commenced to run from the date of the “deemed decision”. As referred to earlier, s.34(11)(a)(i) provides that where the planning authority decides under the section to grant a permission:
“(i) … it shall make the Grant as soon as may be after the expiration of the period for the taking of an appeal”
What is necessary for Mandamus
29. An application for mandamus requires that there be a denial of a right. Until the expiration of an appeal period, therefore, no right was vested in the Ryans to call for the grant. It is well established that, in the case of an application for mandamus, the right to bring an application, cannot accrue until there has been a demand and a refusal (The State (Modern Homes) (Ireland) Limited v. Dublin Corporation [1953] I.R. 202).
30. What is necessary is that there must have been “an adequate, clear and repeated demand” for the performance of a particular act. It is unnecessary that the word ‘demand’ be there, but there must be enough, on the whole of the facts, to show to a court that, for some improper reason, compliance is withheld, and/or an indication given of an intention not to do what is required. Modern Homes demonstrates there must be a distinct “refusal” to comply with such a demand; either in direct terms, or by conduct from which a refusal can be conclusively implied. This arises from the fact that before an application can be made to the Court to compel a person or body to act in accordance with its duty, the person or body has the option of either doing, or refusing to do, that which is required. When were these requirements satisfied in the instant case?
31. Bearing in mind there must be both a demand, and an express and distinct refusal, that demand was only made in a letter of the 28th August, 2007. This was not an excessive or unreasonable delay in making a demand in the circumstances. The refusal was communicated by the County Council’s solicitor in a letter of the 17th September, 2007, and received by the appellants’ solicitors on the 18th September, 2007. The Notice of Motion seeking leave to apply for judicial review was dated the 9th November, 2007. Leave to apply for judicial review was granted on the 19th November, 2007. Thus, although the High Court judge may have erred in referring to time as starting to run as and from the 25th September, 2007, I do not think this makes a difference. Time had not expired.
The ‘Discretionary Factors’
32. Should the three ‘discretionary factors’ alluded to earlier then alter the situation in any way? The fact that an application is made within time may not always be conclusive as to whether delay will be granted. However, a claim cannot normally be defeated for delay if it is commenced within the relevant time. There would need to be some special factor such as prejudice to third parties (see judgment of Fennelly J. in Dekra Eireann Teoranta v. Minister for Environment & Local Government [2003] 2 IR 270).
33. Can any specific prejudice be shown? Again, the incongruity of the County Council’s position is significant. The Council can hardly claim that it, specifically, is prejudiced by virtue of its own neglect or default. There is, of course, the position of the notice parties herein who objected to the application. But the County Council cannot rely on any prejudice suffered by third party objectors. The County Council adopted the objectors’ submissions on this issue.
34. But, I am not convinced that the notice parties themselves suffered prejudice, at least in the sense that it should be recognised as a bar to discretionary relief. They would need to have demonstrated some clear detriment, but that evidence is lacking for reasons now explained. First, insofar as ‘prejudice’ might arise, it seems to me to derive primarily from the way in which the Act was framed, rather than any act or omission, specifically referable to the objectors’ own situation. Undoubtedly, the third party objectors, who were neighbours, would have needed to keep a very close eye on the progress of the application in order to avail of a right of appeal; but can the expiry of time in itself constitute prejudice? Second, it has not been shown that the detriment went further and led, in a clear tangible way, to a real denial of some substantive ground of objection. Third, I am not persuaded that the objectors can rely on some hypothetical inconsistency with the Local Area Plan. It is quite unclear whether the development as envisaged would be at variance from the plan, a subject addressed more specifically in considering the Court’s discretion.
The Refusal of Mandamus on Discretionary Grounds
35. Section 18(3) of PDA 2000 provides that:
“(a) When considering an application for permission under section 34, a planning authority, or the Board on appeal, shall have regard to the provisions of any local area plan prepared for the area to which the application relates, and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made. …” (emphasis added)
36. Having correctly found that the appellants’ application for planning permission did not involve a material contravention of the County Development Plan, the trial judge went on to conclude that it was actually unnecessary for the County Council to show that such an application involved a material contravention of that Plan. He held it would be sufficient to show that the application, properly made and processed, would have required the planning authority to disregard, or not to have proper regard to, the Local Area Plan. It is now accepted on all sides that there is no question of any material contravention of the County Development Plan.
37. The trial judge went on to express himself in this way:
“In considering this issue, it is paramount that the court should remain mindful of precisely what the applicants are seeking in the present case. It is clear from the legislation that regard to the Local Area Plan is an essential prerequisite for any decision to be made by the respondent. In essence, therefore, the applicants are asking the court to deem the respondent to have made a decision which, if made in the absence of the court’s assistance, would amount to an unlawful act because ipso facto no regard could be had to the Local Area Plan in a default permission. Had the respondent in the present case made a formal decision in respect of the application within the relevant time period without having regard to the Local Area Plan, that decision could readily be impugned on judicial review.”
He continued:
“It seems to me that there is an overriding need to maintain a coherent logic while interpreting the provisions of the 2000 Act, in particular, while dealing with the complex area of default planning permission. The court must remain mindful at all times of the potential consequences of a grant of default permission. In view of this, I cannot accept the submission of the applicants that this court has power to order the respondent to issue planning permission in respect of a proposal which would contravene the Local Area Plan.”
38. But these important passages raise, or more appropriately beg, a number of questions. Among these are:
(a) What would have been the consequence if the local authority did have “regard” to the Local Area Plan?
(b) What considerations would the County Council have borne in mind in making an assessment having regard to that plan?
(c) Could the absence of such a component be characterised as prejudice or detriment either by the Council or the notice parties?
The answer to all these questions, unavoidably, raises the question of whether a court may appropriately deal with, or engage in, what must necessarily be purely planning considerations. Is it the business of the courts to have regard to substantive, “merit-based”, planning considerations? As a consequence of the Aarhus Convention, both national and European law in this area may now be in a state of further development. But, on the extant legal authorities, the answer to the questions must be “no”, that it is not the business of the courts to enquire into a ‘merits’ based issue of this type.
39. In analysing the High Court judgment it must be understood that the judgment preceded the decision of this Court in Abbey Drive Developments Limited v. Kildare County Council [2009] IESC 56.
40. There, Fennelly J. speaking for this Court and, again in fact, referring to s.34(8) PDA 2000, observed, at paragraph 29:
“Article 34(8) provides for a decision in default following from the chance or accidental failure of the planning authority to make a decision within or to secure an extension of the eight-week period. For reasons already given, there could not be a deemed decision where no valid decision could have been made. It is quite another matter to say that there cannot be a deemed decision where a valid decision could have been made, although such a decision would involve an exercise of discretion in favour of the applicant. I cannot see how the courts can impose any limitation on the effect of article 34(8) except on the basis of legal power. To do otherwise would have the inevitable effect of drawing the courts into expressions of opinion on matters which properly fall within the scope of the planning authorities. The present case is a good example. It is a matter of opinion, that is to say of proper planning judgement, whether the inclusion of a very small area for community services in a housing development should be considered as within or without the definition of residential zoning. That is a matter for the planning authority or, on appeal, An Bord Pleanala to decide.”
41. Prior to the judgment of this court in Abbey Drive, Barr J. in the High Court judgment of McGovern v. Lord Mayor, Aldermen and Burgesses of the City of Dublin [1999] 2 ILRM 314, had held that a court could grant relief only in circumstances where a default planning permission to an application would, in the normal course of events, be one which, in principle, was entitled to succeed. On this conclusion, Fennelly J. pointed out in Abbey Drive that a ‘hypothetical’ issue of compliance with the Local Area Plan could not be among the discretionary factors to which a court might have regard:
“In my view, Barr J was in error in McGovern, in establishing a new category of case, beyond cases of contravention of the Development Plan or non-compliance with regulations, where a default permission cannot arise.”
42. In Maye v. Sligo Borough Council, already cited, Clarke J. in the High Court, having observed that PDA 2000 placed no limitation on the entitlement to a default permission by reference to the type of planning application involved, and pointed out that the Act did not require that the applicant must have complied with the planning regulations. He said that there was not even a hint in the legislation, that the Oireachtas took the view that there should be some limitations by reference to the type of application involved. At page 695 he warned:
“However to ask the courts to go further and form a generalised judgment about whether a particular planning permission would ordinarily be allowed would be to involve the courts in exercising the type of planning judgment which requires an expertise which the courts do not have and would involve the courts in a role not contemplated by planning legislation. It seems to me, therefore, that if there are to be limitations beyond the material contravention limitation then it is a matter for the Oireachtas to determine, as a matter of policy, what those limitations should be. Clearly, despite the many comments made by courts as to the potential unfairness of the default permission regime, the Oireachtas was not persuaded to introduce any such limitations when revisiting the issue on the enactment of the consolidation 2000 Act. The Oireachtas has, therefore, in my view, at present, set its face against such limitations. In those circumstances it would be wrong of the courts to impose them.”
43. Under s.18 PDA 2000, the Oireachtas made provision for the adoption of Local Area Plans by a planning authority. However, it is clear that such a local plan was hierarchically subordinate to the County Development Plan in this case (see s.19(2), as substituted by s.8 of the Planning & Development (Amendment) Act, 2002, and amended by the Planning and Development (Amendment) Act 2010 and the Local Government Reform Act 2014). But the legislature did not lay down some special procedure, enabling a planning authority to grant planning permission that was in material contravention of a Local Area Plan as opposed to a County Development Plan. It must be assumed, therefore, that it was within the power of local authorities to deviate from a Local Area Plan, unless such deviation was also a material contravention of a County Development Plan. It is not tenable, therefore, to conclude that the planning authorities were obliged to “have regard in a particular way” to the Local Area Plan when considering an application for permission under s.34 (see s.18(3)(a)).
44. Section 34(2)(a) PDA 2000 provides that, when making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, “regard” being had to:
“(i) the provisions of the development plan,
(ii) the provisions of any special amenity area order relating to the area,
(iii) any European site or other area prescribed for the purposes of section 10 (2)(c),
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,
(v) the matters referred to in subsection (4), and
(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder.”
45. There were therefore, a range of matters to which a planning authority was obliged to have regard when reaching a decision. The section did not specify the nature, extent, or weight of that “regard”. It is impossible for a court to determine what weight a planning authority would give, or might have given, to any one or more of the criteria. The only relevant criterion capable of legal and justiciable identification in the PDA 2000 was adherence to the County Development Plan, because of the implied prohibition against granting a permission in material contravention of that plan, save in accordance with special procedures.
46. In fact, here, it is open to question whether the application would necessarily have contravened the Local Area Plan at all. There are clear indications in the papers that the Council effectively dealt with every application on a ‘case by case’ basis given that the zoning for the area in question is “open”. As a consequence, a number of different types of land uses might have been possible. Residential development is not in form excluded. Thus, there would have been a discretion vested in the local authority in relation to this, or any other, application. The wider the discretion, the more difficult it would be for a court to impose some hard and fast regime in the absence of identifiable legal criteria. To go further involves a trespass into planning matters.
Rights under the ECHR
47. Neither the respondent, nor the notice parties, have invoked s.5 ECHRA 2003, and sought a declaration that s.34(8)(f) PDA 2000, or any other provision relevant here is incompatible with the ECHR. The Attorney General was not joined in the proceedings. With these considerations in mind, I turn finally to the High Court judge’s findings in relation to the ECHR. In support of his findings in relation to the Local Area Plan, the judge refused judicial review:
“in light of the court’s obligation to interpret the 2000 Act, in accordance with the Convention so as far as is possible, the rights of such individuals [i.e. objectors] cannot simply be ignored.” (additional words in square brackets added)
48. On this a number of points arise. There is no doubt that s.34 of the PDA 2000 extended some degree of statutory provision for the rights of objectors. Section 34(3)(b) of PDA 2000 provided that, when considering an application for permission under this section, a planning authority should have regard to:
“(b) any written submissions or observations concerning the proposed development made to it in accordance with the permission regulations by persons or bodies other than the applicant.”
49. However, that section makes no provision for the notification of a deemed decision, either to the applicant or to notice parties. It is true that such a decision can have prejudicial effects on notice parties. It is precisely those objections which led to the astringent criticisms of the provisions of the PDA 2000, referred to earlier. The question is, however, whether, on the facts of this case, what is now urged on the Court by the Council is to interpret the PDA 2000 in a manner which is compliant of ECHR requirements, or whether it goes much further? Does the interpretation, in fact, require judicial “legislation”?
50. Section 2 of the European Convention on Human Rights Act, 2003 (“the Act of 2003”) provides:
“2-(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.”
51. Under s.4 of the Act of 2003 the courts are enjoined to take judicial notice of Convention provisions and of declarations, decisions, advisory opinions or judgments of the European Court of Human Rights. Under s.5 it is provided:
“5.(1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.
(2) A declaration of incompatibility -
52. The Council seeks an “interpretation” of the statutory provisions in a manner in which, it now says, would be, insofar as is possible, compatible with Ireland’s obligations under the Convention provisions. The Council submits there was a denial of procedural ECHR rights, either to itself or to the third parties.
53. I am unable to conceive as to any manner in which the PDA 2000 could, on the facts of this case, be interpreted in the manner which is now urged. Under the provisions as they stood then, a situation might, arguably, arise where both Article 6(1), Article 1 of the First Protocol, and Article 8 were engaged. Arguably, what might have been in question here was a determination of civil rights affecting persons whose neighbouring homes might be adversely affected by a permitted development.
54. However, in this case, the Court is not being asked to make a declaration that the “deeming” provisions in PDA 2000 are in some manner incompatible with the Convention. The Court, rather, has been asked to engage in a significant redrafting exercise. The quotation from s.34 outlined above makes no provision for the notification of a deemed decision, either to the applicant, or to notice parties, or for either to be heard. It is not possible to construe the section so as to provide the form of protection of potential rights which the Council suggests here. In order to make that case it would be necessary to add a hypothetical proviso to s.34(8)(f) so that it would read:
“Where a planning authority fails to make a decision within the period specified in paragraph (a), (b), (c), (d) or (e), a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of the period” and then to add the words ‘save where third parties have made submissions or observations pursuant to s.4(3)(b)’.
55. To interpret the sub-section in this way would be a fundamental departure from the accepted rules of construction. I am not persuaded that what would be in question here would be a possible “interpretation”, as properly understood. The construction urged could not be said to be implied in this section, nor could it be capable of implication, even if there was supporting ECtHR case law to support such an interpretation. To treat the situation in this way would, in fact, require a declaration of incompatibility. The Court is not a legislator. What is urged for would be a process of statutory redrafting which would, in effect, fundamentally alter the effect and range of application of the sub-section. Under s.2(1) of the ECHR Act 2003, the courts are enjoined “insofar as is possible, subject to the rules of law relating to such interpretation and application” to carry out a process of interpretation in a manner compatible with the State’s obligations under the Convention provisions. These rules of law relating to interpretation and application include, inter alia, the provisions of the Constitution which prevent the courts from engaging in legislation. But there is a further obstacle. I do not think that, in the circumstances, either the County Council, or the notice parties, can demonstrate a sufficient detriment, or denial of rights, such that ECHR considerations are engaged in the first place. The Council’s own interpretation of the Local Area Plan treats the zoning of the area as ‘open’. A number of different land uses could have arisen. As indicated earlier, s.5 ECHRA was not invoked or relied on. I reserve my views on the question of Convention incompatibility of the provisions considering that the provisions of PDA 2000 under consideration here have now been amended by the Planning & Development (Amendment) Act, 2010.
56. For these reasons, I would reverse the judgment of the High Court on the “discretion” issue, and grant the declaration and mandatory orders sought.
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