THE HIGH COURT
judicial review
			1998 No. 18 JR
BETWEEN 
BARRY COONAGH
			APPLICANT
AND
AN BORD PLEANALA
			RESPONDENT
AND 
THE IONA AND DISTRICT RESIDENTS' ASSOCIATION 
			NOTICE PARTY
AND 
DUBLIN CORPORATION 
			NOTICE PARTY

JUDGMENT of Mr. Justice Declan Budd delivered on the 26th day of February 1998

	The Applicant and his wife purchased a commercial property known as "the Maples Hotel" at 79/81 Iona Road, Glasnevin, Dublin 9 in or about 1994.  The property for many years previously had been run as an extended Bed and Breakfast with approximately twenty-two bedrooms and a licence to serve alcohol.  The hotel is located on the northern side of Iona Road in a residential area in Glasnevin.  The houses were built in Edwardian times and in the 1991 Dublin City Development plan the area has a land use zoning objective "A2" which is "to protect and/or improve the amenities of residential conservation areas".  
	the previous owners of the hotel had erected a number of signs on the property to indicate that it was a commercial premises and had also installed some external lighting to highlight these signs for night-time use.  the Applicant and his wife expended considerable sums on refurbishing the premises and indeed the Residents Association concede that most of the changes to the hotel have been beneficial and that the new owners have made great efforts to improve the building and to work with the community and in providing meeting rooms etc. for charitable and community organisations to the benefit of the community as a whole.  As part of the refurbishment programme the Applicant, who is by profession a chartered surveyor, put up three signs on the external frontage of the property.  One of the signs was an "Hotel" sign and was a small box sign which he says was a smaller replacement of the original "Maples" sign, which was in place for about twenty-seven years.  The other two signs were one sign for Heineken Beer and the other a sign for Kilkenny Beer, both of which were new and were erected since the purchase of the property.  Both of these are quite small signs.  The following description of the signs appears in the planning inspector's report to An Bord Pleanala:-

1.	Sign A - a Heineken circular sign, internally illuminated measuring 900 mm x 1000 mm.
2.	Sign B - a double sided illuminated box sign measuring 960 mm x 1350 mm with the hotel's name on it.
3.	Sign C - a circular Kilkenny sign with an external spotlight on either side.  The sign measures 930 mm x 730 mm and is on the side elevation, fronting to Iona Drive.  The floodlights are on the front of the building on the Iona Road elevation.  

	The Applicant contends that the lighting is essential from a commercial point of view and also for security reasons and for the safety of customers entering  and leaving the premises as the signs augment the other lights.  
	In early 1997 the Applicant sought retention planning permission from Dublin Corporation for signage, floodlights and security lights on the external facade of the premises.  An application for retention planning permission was submitted on 22nd April, 1997.  An objection to the application was lodged by the Iona and District Residents Association; the objection was dated 1st May, 1997 and was received in the planning department on 6th May, 1997.  The objection was that the signage and lighting were excessive in the circumstances that Iona Road has an Edwardian ambience and is predominantly residential.  
	A planning officer, Patricia Hyde, inspected the premises taking into account the objections from local residents.  Her report dated 19th June, 1997 was made to the Dublin Planning Officer.  She described the signs and said of the objections:-

	"There are a number of objections to the development - from the Iona and District Residents Association and from local residents who feel that the signage and spotlighting is excessive, given that Iona Road has an Edwardian ambience and is predominantly residential.  I have noted carefully the objections and inspected the premises in the evening when it was dark.  There was a neon restaurant sign on the ground floor window - this is exempt from planning control.  

	ASSESSMENT
	The signage and floodlighting is not excessive and given
	(a)	that the hotel is long established
	(b)	that there is a need to identify the premises as a commercial entity, 
	I  recommend that planning permission be granted for retention."

	This recommendation was accepted and the Planning Department of Dublin Corporation granted retention planning permission number D3153 on 19th June, 1997.
	The Residents Association lodged an appeal against this decision of the Planning Department on 18th July, 1997 with An Bord Pleanala.  Both the Applicant and the Residents Association made representations to An Bord Pleanala and a planning inspector, George Hannigan, was duly nominated by An Bord Pleanala to consider the appeal.  The inspector issued his report dated 7th November 1997.  In his Report he sets out the history of the appeal and the views of the Applicant, the objections from the Residents Association and the views of the Planning Department of Dublin Corporation.  I quote from his report:-

	"Third Party Appeal
	The Third Party Appeal, dated 16th July, 1997, has been submitted by the Iona and District Residents Association, and is summarised as follows:-
	1.	the Glasnevin Maples Hotel sign is not in keeping with the Edwardian  ethos of the area and is contrary to the proper planning and development of the area.
	2.	the Heineken and Kilkenny signs are contrary to the "A2" objective for the area which is to protect, and/or improve the amenities of residential conservation areas.
	3.	a restaurant sign, in one of the ground floor front windows is intrusive and damages the residential and environmental quality of the area.
	4.	the Appellant quotes paragraphs 15.15.11 and 15.15.14 in support of the appeal and contends that the signage is not in keeping with the residential Edwardian area nor the restrictions imposed by Dublin Corporation.  
	5.	the alterations to the lighting and signage are the forerunner of an intensification of usage of the premises.

	Applicant's Response to the Third Party Appeal
	In the response to the Appeal, dated 18th August, 1997, the Applicant makes 		the following points:-
	1.	The only additional signs erected are signs "A" and "C".  Sign "B" is a 		replacement sign for the original Maples sign.  
	2.	The restaurant sign is not part of this application.
	3.	The signage is not considered excessive for a commercial licensed premises.  
	4.	The box sign is smaller than the one it has replaced (see postcard 			attached).
	5.	The vast majority of local residents have no objection to the signs.

	Planning Authority's Response to the Third Party Appeal 
	By correspondence dated 15th August, 1997 the planning authority have responded to the appeal and reiterate the views expressed in their original report.  Regarding the grounds of appeal, the following observations are made:-
	1.	The proposed signs are relatively minor in scale and therefore are not considered visually obtrusive.  They do not detract from or diminish the quality of either this facade or the streetscape.
	2.	The Maples Hotel is a long established commercial use in the area and therefore it is appropriate to identify it as such.  The signs do not clutter the facade nor are they out of scale with the building.
	3.	The restaurant sign does not require planning permission.
	4. 	This application relates to signage and lighting and therefore it is not appropriate to comment on future potential uses in this appeal.

	land use zoning
	The subject site is located in an area with a land use zoning objective "A2" which is 'to protect and/or improve the amenities of residential conservation areas' in the 1991 Dublin City Development Plan.

	ASSESSMENT AND RECOMMENDATION
	The main issues involved in this appeal are the impact of the proposal on an "A2" conservation area and the requirements of the Dublin City Development plan regarding advertisements.

	In relation to advertising on business premises, paragraph 15.15.11 of the current Development Plan states 
		'The number of signs attached to a building should be limited to prevent an impression of clutter and no sign should be excessively obtrusive or out of scale with the building facade'.
	Furthermore, paragraph 15.15.14 and 15.15.15 states
		'the use of illuminating box fascias and illuminated projecting box signs will be severely restricted, particularly when they are used indiscriminately in relation to the shop front or building to which they relate (15.15.14)'.

	All advertising above ground level will be severely restricted in order to avoid clutter and preserve the amenity of the streetscape on any building fronting on Upper and Lower O'Connell Street, Westmoreland Street, College Green or any conservation area, projecting signs affixed at any point above the ground floor facade shall not normally be permitted.

	In relation to the current proposal, I consider the advertising signs:-
	1.	are at ground floor level facade;
	2.	do not, by reason of their number, scale and location, create visual 		clutter;
	3.	are pedestrian orientated;
	4.	do not detract from the visual appearance of the building or the area in general.  

	This hotel is a 'legally established' business in a residential conservation area.  It is a commercial venture which requires to be easily identified but not to an extent where this identification (advertising signs) detracts from the streetscape, the building itself or the area in general.  I consider the signage is visually acceptable on the streetscape and does not detract from this residential conservation area.  In relation to the floodlighting, this site was inspected in the evening to ascertain the effect of the lighting on properties in the vicinity of the site.  The lighting on the front facade is subdued and directed towards the brickwork, illuminating the building but having little or no effect on neighbouring properties.  Having read all the reports on the file and inspected the site, I recommend that permission for the proposed development be granted."

	Thus the recommendation of the inspector was in favour of a grant of permission for retention of all three signs.  This was supported by the views of the planning officer in her report dated 19th June, 1997.  In the letter dated 14th August, 1997 to An Bord Pleanala, the planning department of the Corporation reiterated the view that the retention planning permission should be granted for the reasons set out in the planning authority's response to the Third Party appeal as set out in the Planning Inspector's report.  On 17th November, 1997 An Bord Pleanala decided to grant permission for Sign B and refused permission for Signs A and C and the lighting.  The hotel sign was allowed for the reasons set out in the First Schedule:-

	"having regard to the nature of the business and to the dimensions of the sign, it is considered that the sign does not seriously injure the amenities of the area and is in accordance with the proper planning and development of the area."  

	The two beer signs and the lighting were refused for the reasons set out in the Second Schedule:-

	"Having regard to the zoning objective for the area, as set out in the current Dublin City Development Plan, which objective is to protect and/or improve the amenities of residential conservation areas (which objective is considered reasonable), it is considered that the additional signs (Signs "A" and "C") and the external lights seriously injure the amenities of the area and are contrary to the proper planning and development of the area."

RELEVANT LAW
	Section 82 of the Local Government (Planning and Development) Act, 1963 as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992 provides as follows:-

	"(3A)	A person shall not question the validity of ... 

	(b)	a decision of (An Bord Pleanála) on any appeal or on any reference, otherwise than by way of an application for judicial review under O.84 of the Rules of the Superior Courts (S.I. No 15 of 1986)....
	  (3B)	An application for leave to apply for judicial review under the Order in respect of a decision referred to in subs. (3A) of this Section shall
		(i)	be made within the period of two months commencing on the date on which the decision is given, and 
		(ii)	to be made by Motion on Notice to ...
		(iii)	... the Board and each party or each other party as the case may be to the appeal or reference and 
		(iv)	any other person specified for that purpose by Order of the High Court, 
		and such leave shall not be granted unless the High Court is satisfied there are substantial grounds for contending that the decision is invalid or ought to be quashed.

	In Scott -v- An Bord Pleanala unreported 27th July, 1994, Costello J. said at page 1:-

	"It seems to me that what the Court has to be satisfied about is that there are substantial grounds for declaring the decision invalid.  To comply with this the Court must examine and assess the grounds on which the decision is challenged.  In this case the Court does not have to reach a decision on disputed questions of fact.  If I am satisfied that there are substantial grounds, then I must allow the application.  If I am not so satisfied then I must refuse the application."

	Having considered the issues on this application for judicial review and the planning matter he came to the conclusion that the two grounds submitted were not ones of substance.
	  Liberty was given to appeal to the Supreme Court on the grounds that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.  The Judgment of the Supreme Court was given by Egan J. on 29th November, 1994 ([1995] 1 ILRM 424).  He said at pages 428-429:

	"What meaning should be given to the word "substantial"?  I gain little assistance from the views expressed by various judges in O'Dowd -v- N.W. Health Board [1983] ILRM 186 and Murphy -v- Greene [1990] 2IR 566 as they were dealing in the main with allegations of factual matters whereas the present case is concerned with a contention of law.  I fall back on a word which is so often used as a test in legal matters.  It is the word 'reasonable' and I suggest, therefore, that the words 'substantial grounds' require that the grounds must be reasonable."  

	He then went on to consider the matter and said that he saw nothing in the arguments advanced by the appellants to overturn the view of the learned judge that there were not substantial grounds for contending that the decision was invalid.
	Another case in which an application for leave to apply for judicial review fell to be decided was Byrne -v- Wicklow County Council.  Keane J. in a Judgment delivered on 3rd November, 1994 said that he approached the matter on the basis that the applicants must show not merely an arguable case but substantial grounds for contending that the planning permission was invalid and he said that he had not the slightest hesitation in holding that there were no substantial grounds.  The decision impugned was a decision of the county manager and Keane J. said it was plainly and almost inarguably a decision in respect of which there was material before him entitling him to arrive at the conclusion.  
	In McNamara -v- An Bord Pleanala [1995] 2 ILRM 1025 at page 130 
Carroll J. said:-

	"What I have to consider is whether any of the grounds advanced by the Appellant are substantial grounds for contending that the board's decision was invalid.  In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty.  It must not be trivial or tenuous.  However, I am not concerned with trying to ascertain what the eventual result would be.  I believe I should go no further than satisfy myself that the grounds are 'substantial'.  A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial.  I draw a distinction between the grounds and the various arguments put forward in support of those grounds.  I do not think I should evaluate each argument and say whether I consider it is sound or not.  If I consider a ground, as such, to be substantial, I do not also have to say that the Applicant is confined in this argument at the next stage to those which I believe may have some merit."

	This summary of the judicial function in adjudicating on an application for leave to seek judicial review of a decision of An Bord Pleanala has frequently since been cited with approval.
	In O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39 the Local Authority had granted planning permission for a radio mast at Tara.  Local people appealed this decision to An Bord Pleanala.  An oral hearing was heard before a planning inspector who reported and recommended, after setting out the relevant evidence in a substantial report, against a grant of planning permission.  An Bord Pleanala decided, despite the recommendation of the planning inspector, to grant planning permission.  Costello J. in the High Court quashed the planning permission on the grounds that there was no evidence on which An Bord Pleanala should depart from the recommendations of the inspector.  On appeal to the Supreme Court it was held that the decision of Costello J. should be reversed as the proceedings were not a form of appeal and a very high margin of deference should be paid to the decision of An Bord Pleanala as an expert body set up to deal with planning appeals.  In view of the high margin of appreciation and tolerance to be given to An Bord Pleanála the courts should not lightly interfere with the decision of An Bord Pleanála.  At page 72 Finlay C.J. said as follows:-

	"I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision-making authority had before it no relevant material which would support its decision."

	Counsel for the Applicant submits that this matter is only at "the seeking leave to apply stage".  He accepts that there is a higher standard than in the usual judicial review to be satisfied and that the principle as set out in the O'Keeffe case applies.  However, Counsel for the Applicant suggests that the present case bears a superficial similarity to the matters set out in O'Keeffe in that in both cases An Bord Pleanála rejected the recommendations in the inspector's report, at least in the present case to the extent of refusing retention permission for Signs A and C.  Counsel contends that in the present case there are distinguishing features.  First, both the planning officer and the planning inspector in their reports make succinct recommendations which are overwhelmingly in favour of the grant of retention permission.  He contrasts this with the Inspector's report after the oral hearing in the Radio Tara case in which the report of the inspector was over one hundred and twenty pages long giving a synopsis of the considerable evidence given at the oral hearing and in which there was much evidence given on both sides.  Secondly, he points out, that in this case there was no oral hearing unlike in the Radio Tara case.  Thirdly, Counsel submits that there was no recital of evidence contained in the Inspector's report which would, in his submission, justify the Bord in arriving at the decision to refuse retention permission for the two beer signs.  He submitted that both the planning officer and the planning inspector had reported in favour of the grant of retention and that there was no scintilla of evidence in favour of the refusal to grant retention permission.  He submitted that there were considerable policy considerations in the Radio Tara case whereas in the present case much turned on the visual impact of the beer signs and both the planning officer and the planning inspector had looked at the signage and the lighting and had recommended retention permission.  He argued that the laconic decision of An Bord Pleanala appeared to be aberrant and irrational.
	Counsel for the Respondent has referred to O'Donoghue -v- An Bord Pleanála and Tallon Properties Limited  [1991] ILRM 750 in which the planning issue was whether the bungalow in that case constituted an over development of the site.  At page 759 Murphy J. said:-

	"It seems to me that the indisputable data permitted both conclusions.  The site was delineated on the plan attached to the planning application and the dimensions of the proposed four bedroomed bungalow were likewise indicated thereon.  It seems to me that that information alone would have entitled the bord rationally to have formed the view that the proposed development would not constitute over-development of the site notwithstanding the fact that others whose views are entitled to respect took a diametrically opposite view.  No matter how vigorously one might disagree with the conclusion reached by the bord it would be impossible to say that it 'flies in the face of fundamental reason'."  

	In McGarry -v- Sligo County Council 1989 ILRM 768 McCarthy J., referring to the County Development Plan, said at page 772:-

	"When adopted, it forms an environmental contract between the planning authority, the council and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially."

	No one here is suggesting that the Local Authority is effecting a development contravening the plan materially but it is quite clear that the Association in making its appeal was bringing to the attention of the Bord the Edwardian ambience of the area and that the zoning objective of the Corporation was to preserve the amenities of the residential conservation of the area.  It is clear from the map and photographs in the Appendix, the submissions of the residents Association and the zoning of the area and the provisions of the City Development Plan with regard to the signs in a residential conservation area that there was material on the basis of which An Bord Pleanala could reasonably reach the decision made.  Indeed Counsel for the Residents Association submitted that the hotel in this residential location was a planning anomaly.  Furthermore the Applicant for planning permission should not be entitled to benefit from an illegal development in respect of the two beer signs in the sense that he cannot avail of the fact that they have been erected for some years since they should not have been put up.
	While there was a reference in the Third Party Association's Appeal to the alterations to lighting and signage being the forerunner of an intensification of usage, it is clear from the Planning Authority's response that this was irrelevant and no inference can be drawn that either the inspector or An Bord Pleanala were improperly influenced by this immaterial consideration.
	I conclude that there was ample material before An Bord Pleanála on the basis of which a perfectly rational decision could be made to refuse retention permission in respect of the two beer signs.  Accordingly, I find that there are no substantial grounds for contending that the decision is invalid or ought to be quashed, or that
	1.	the decision of An Bord Pleanala was unreasonable; or
	 	2.	that the Bord was influenced by ultra vires considerations, such as prospective future intensification; or	
		3.	that the Bord failed to consider the long history of the lighting on the facade of the hotel; or
		4.	that the Bord failed to take account of the constitutional rights of the Applicant; or
	 	5.	that the Bord ignored the reports and recommendations of the planning officer and the inspector.
	Accordingly, despite sympathy for the Applicant, I am coerced in to refusing leave to apply for judicial review as there are no substantial grounds for contending that the decision is invalid or ought to be quashed.

Authorities referred to in judgment:

Byrne -v- Wicklow County Council, unreported 3rd November, 1994
McGarry -v- Sligo County Council [1989] I.L.R.M. 768
McNamara -v- An Bord Pleanala [1995] 2 I.L.R.M. 125
Murphy -v- Greene [1990] 2 I.R. 566
O'Dowd -v- North Western Health Board [1983] I.L.R.M. 186
O'Keeffe -v- An Bord Pleanala [1993] 1 I.R. 39
O'Donoghue -v- An Bord Pleanala [1991] I.L.R.M. 750
Scott -v- An Bord Pleanala, unreported 27th July, 1994
Scott -v- An Bord Pleanala [1995] 1 I.L.R.M. 424