THE HIGH COURT
									(JUDICIAL REVIEW)
									Record No. 378 J.R/1997

BETWEEN

THE DELGANY AREA RESIDENTS ASSOCIATION LIMITED
									APPLICANT
AND
THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
									RESPONDENT
AND
AVMARK LIMITED
									NOTICE PARTY

Judgment of Mr. Justice Robert Barr delivered on the 28th day of May, 1998.

	These proceedings relate to an application by the Delgany Area Residents Association Limited for liberty to proceed with an application for judicial review of a decision made by the respondent local authority in which it purported to grant planning permission, subject to certain conditions, for the construction of a substantial housing development by the notice party at Delgany, Co. Wicklow.  The relief sought by the applicant, as set out in the statement to ground the application for judicial review, is as follows:-

	"1.	An order of certiorari quashing the decision of the respondent dated the 25th day of August, 1997.

	2.	A declaration that the respondent is bound by the decision of An Bord Pleanala on planning application register reference 95/2458 dated the 2nd day of August, 1996 to refuse planning permission for a similar development on the lands.

	3.	An order of mandamus directing the respondent to reconsider the aforesaid application in the light of the decision of An Bord Pleanala dated 2nd August, 1996."

	The grounds relied upon by the applicant are:-

1.	The notice party lodged an application for planning permission for 294 houses on lands at Delgany in the County of Wicklow which application was given register reference no. 95/2458.

2.	The respondent granted planning permission for the development subject to a number of conditions and the decision to grant planning permission was appealed to An Bord Pleanala.
	
3.	An Bord Pleanala, having considered the application and having convened an oral hearing, decided to refuse planning permission for the proposed development by a decision dated the 2nd day of August, 1996.

4.	The reasons for the refusal were that the proposed development constituted a traffic hazard and would seriously endanger public safety on that account and that the proposed development was premature pending creation of an adequate road network serving the village of Delgany and the surrounding area.

5.	Within a period of three months from the decision of An Bord Pleanala the notice party lodged an application for planning permission for essentially the same development on essentially the same lands with a similar density and layout to that which had been previously refused by the Board.

6.	The planning authority decided (decision dated 25th August, 1997) to grant planning permission for the proposed development, notwithstanding the decision of the Board some months previously to refuse permission. In the intervening period none of the reasons for refusal cited by the Board had been materially altered and the same circumstances applied at the date of the making of the respondent's decision on 25th August, 1997 as pertained on the date of the decision of An Bord Pleanala.  The decision of the planning authority on planning application no. 96/5079 is similar in terms to the previous decision on planning application no. 95/2458 and failed to have proper regard to the decision of An Bord Pleanala and to the matters which the Board held precluded the development from proceeding.
17.	The issue relating to the inadequacy of the access road is precisely the same as that which was before the Board on the previous application for which the Board had refused planning permission.

8.	The second reason for refusal that the absence of a by-pass for the south of Delgany village and the generally inadequate road network serving the site has not changed since the date of the decision of An Bord Pleanala on planning application no. 95/2458.

9.	The location of the entrance to the site and the density and general layout of the housing and the substance of the application in all material respects is identical to that which was previously refused by An Bord Pleanala.  Notwithstanding the similarities in the applications the local authority refused to have regard to the decision of the Board to refuse planning permission and ignored that decision insofar as the substance of the issues raised by the Board and considered unacceptable by them were concerned and proceeded to grant planning permission for the proposed development in similar terms to their previous decision.

10	It was submitted that the local authority in considering an application which was similar in terms to that already considered by An Bord Pleanala in the absence of any significant change in circumstances pertaining to the proper planning and development of the area and/or in the absence of a change in the statutory development plan are bound by the decision of An Bord Pleanala and cannot depart from it except where there are extraordinary excusing circumstances.
11.	There has been no change in circumstances in the period between the decision of An Bord Pleanala on planning application no. 95/2458 and the decision of the respondent on planning application 96/5079.

12.	The decision of the respondent is ultra vires the decision of An Bord Pleanala on planning application no. 95/2458.

13.	That the principle of res judicata applies to decisions of planning authorities and to decisions of An Bord Pleanala on appeal.

14.	It was pleaded that the planning authority is estopped from determining the application for planning permission on no. 96/5079 other than in accordance with the decision of An Bord Pleanala dated the 2nd August, 1996.

	It was also pleaded that the decision of the planning authority was unreasonable, but at the hearing counsel for the applicant informed the court that it was not proposed to rely on that particular point.
	The history of the two planning applications made by the notice party to the respondent and other related matters are set out by Mr. Michael O'Neill on behalf of the applicant.  Mr. O'Neill is a town planner by profession and has substantial qualifications and experience in that area.  He deposed that the original application for planning permission to the respondent dated 30th May, 1995 was for the construction of 294 houses on lands at Delgany.  On 23rd January, 1996 the respondent notified its decision to grant planning permission for the development subject to 47 conditions.  The applicant residents association had strenuously opposed the application on a number of grounds, the most important of which was a contention that there was a totally inadequate road network serving the site; that there was an inadequate infrastructure for the overall area surrounding the village of Delgany and the fact that the respondent's development plan was about to be reviewed and such a large development would prejudice options within that plan.  The applicant appealed the decision of the respondent to An Bord Pleanala and employed a number of professional experts to advise and give evidence at the subsequent oral hearing directed by the Board.  The applicant comprises a comparatively small number of residents in a semi-rural area and the cost of mounting an appeal to An Bord Pleanala against the granting of planning permission to Avmark in respect of the development in question was substantial and bore heavily upon the individual members of the association.
	The oral hearing directed by the Board was conducted by an inspector, Mr. James Carroll, on its behalf and in due course he furnished a detailed report on the proceedings to the Board.  It decided to refuse planning permission for the proposed development for the following reasons:-

	"1.	Having regard to the scale of the proposed development, it is considered that the development would be premature by reference to -

		(a)	the existing deficiency in the road network serving the area of the proposed development in terms of capacity, with an alignment, which would render that network unsuitable to carry the increased road traffic likely to result from the development, and

		(b)	the period within which the deficiency involved may reasonably be expected to cease by way of the proposed by-pass to the south of Delgany village and the proposed connection northwards by means of a distributor road through the site, the subject of the planning application.

	2.	Having regard to the substandard nature of the regional route R762 serving the site, it is considered that the traffic likely to be generated by the proposed development would endanger public safety by reason of traffic hazard."

	Soon after the refusal of planning permission for the proposed development, reference No. 95/2458, the notice party submitted a new application to the respondent for planning permission in respect of a housing development on the same site at Delgany which, in Mr. O'Neill's opinion, is essentially a re-submission of the original application with insignificant modifications which had been refused by An Bord Pleanala.  It is submitted that in the premises the doctrine of res judicata applies and that the respondent has no authority at law to entertain Avmark's second application and that its decision to grant planning permission in respect of it, subject to conditions, is unlawful and should be quashed.
	The case made by Mr. O'Neill has been responded to by Mr. Bernard McHugh who is also a consultant town planner of long experience.  His firm represented the notice party in relation to the 1995 planning application and appeal and also in respect of the second planning application by Avmark (reference no. 96/5079).  He takes issue with Mr. O'Neill's opinion that there is no significant difference in planning terms between the two proposals.  At paragraph 5 in his affidavit he lists differences between them as follows:-
	"(i)	The area of the site in the first application is 17.4 hectares; that in the second is 15.7 hectares.

	(ii)	The extent of the proposed development is reduced from 301 dwellings...... to 263 dwellings.......

	(iii)	The second application, unlike the first, is for a phased development with only 63 houses to be built in the first phase.

	(iv)	Under the second application a permission of more than 5 years duration was sought to facilitate the phased development of the site in tandem with improved and new road infrastructure in the area.  

	(v)	In response to a request for further information in the context of the second application, the notice party herein indicated that if permission were granted, the attachment of a condition requiring a contribution of £5,000 [per house] towards the cost of providing road infrastructure would be acceptable to it."

	Mr. McHugh averred that in dealing with the second application the respondent had addressed the primary planning objections, contained in the reasons for refusal given by An Bord Pleanala regarding the original application, by the attachment of specific conditions designed to deal with the legitimate planning concerns expressed in the decision of the Board.  He referred in particular to the following conditions which were attached to the respondent's decision to grant planning permission dated 25th August, 1997:-
	"A4.	No development within the site shall commence until works to provide sightlines and a turn right lane at the proposed entrance has been completed.

	A5.	Only 63 houses may be constructed until works have been commenced on the East-West Delgany by-pass.......

	B1.	PRIOR TO THE COMMENCEMENT OF DEVELOPMENT
		Contributions of:-

		(i)	£5,000 per house shall be paid by the developer to the Council towards the cost of providing road infrastructure as shown in the Wicklow County Development Plan, Part II together with improvements to route R762 beyond the frontage of this site.....

	B2.	The contributions in B1 above shall be paid in the followings stages:-

		100 units prior to the commencement of development, 
		100 units after completion of 63 houses and
		balance after completion of 163 houses."

	Mr. McHugh went on to aver as follows:-

	"9.	I say and believe that these Conditions demonstrate that the respondent county council did take account of the Decision of An Bord Pleanala on the first application in the following way -

		(a)	The issue of traffic hazard is specifically addressed in Condition A4 which was attached 'in the interests of traffic safety'.  

		(b)	Condition A5 precludes any development of the application site after the first 63 houses are built until construction of the East-West Delgany by-pass has been commenced, thus addressing the premature objection with regard to the said road identified in the Board's first reason for refusal.

		(c)	Condition B1 imposes a substantially increased contribution of £5,000 per house (representing a five-fold increase on the contribution required by the respondent county council on foot of the said earlier application) to be paid to the respondent county council towards the cost of providing road infrastructure, thereby putting in place the funding for remedying the deficiencies in the road network identified in the Decision of An Bord Pleanala.

	10.	I further say that a number of specific planning and development changes have taken place in the period between 1st August, 1996 (the date of Refusal by An Bord Pleanala of the first application) and the 25th August, 1997 (the date of the decision by Wicklow County Council to grant permission on foot of the second application).  The following two changes may be instanced as examples:-

		(a)	Provision has been made under two approved developments during the past six months for the payment to Wicklow County Council of the sum of IR£300,000 in road improvement levies.  This total is half the stated figure of IR£600,000 which Wicklow County Council has confirmed will be required to carry out the necessary improvements in the R762 between Killincarrig crossroads and Delgany.  This is before the notice party's proposed development is taken into consideration at all.

		(b)	The R762 between Barry's Bridge and Delgany has been re-surfaced and new curbs and an improved public footpath has been installed.  Sightlines are being improved at the junction between R761 and the R762 at Killincarrig crossroads by the removal of the existing ditch and the building of a stone wall.
	
	11.	I therefore say and believe that, in adjudicating on the second application, the respondent county council has had proper regard to the decision of An Bord Pleanala on the said earlier Application and has acted in accordance with the principles of proper planning and development in reaching its Decision."

	The foregoing case made by Mr. McHugh on behalf of the notice party is supported by an affidavit sworn by Mr. Desmond O'Brien, acting senior executive engineer in the respondent's planning department.  He set out the attitude of the respondent to Avmark's second application in the following terms:-

	"7.	I say that in considering the planning application under reg. ref. no. 96/5079 the Council had regard to, inter alia, material changes since the decision of An Bord Pleanala under reg. ref. no. 95/2458 on the 2nd August, 1996, including the following:-

		(i)	The notice party under reg. ref. no. 96/5079 sought permission for a phased development with the first phase being the construction of 63 houses;

		(ii)	As appears from the Council's Notice for Further Information dated 16th January, 1997, the Council introduced a strategy of levying every new development within the Greystones/Delgany Development Plan at £5,000 per house, based on the cost of the total amount of road construction required within the town to service the population that would be generated by the zoning objective of the County Development Plan.

		(iii)	As a result of the decision of An Bord Pleanala under reg. ref. no. 95/2458 dated 2nd August, 1996, a decision was made by the County Engineer to bring forward the time-scale for construction of the Delgany East-West by-pass.  The time-scale for construction of the Delgany East-West by-pass arose at the oral hearing prior to the decision of An Bord Pleanala under reg. ref. no. 95/2458 dated 2nd August, 1996 when the inspector was informed by the senior roads engineer that the East-West by-pass was at that time a long term objective.  Since August 1996, the Council had decided to construct the Delgany East-West by-pass in the short term.

		(iv)	All but one of the land owners to the East of the notice party's site along the route of the R762 regional road have informed the Council that their land would be made available for road improvements to R762.

	8.	I beg to refer to the Council's decision under reg. ref. no. 96/5079 dated 25th August, 1997.  Condition A2 states as follows:-

			'This permission shall last for eight years.

			REASON:	To enable the development to be completed subsequent to the commencement of works on a new East-West Delgany by-pass.'

		Condition A3 states as follows:-
			'No development shall commence until contributions, submissions, agreement required by Conditions A7, B1, B3, B4, B5, C5, D1, D2, D3, D8, E4, F1, F5 and F8 below have been submitted to and agreed acceptable in writing by the Planning Authority.

			REASON:	In the interest of proper planning and development and clarification.'

		Condition A5 states:-

			'Only 63 houses may be constructed until works have been commenced on an East-West Delgany by-pass.

			REASON:	In the interest of proper planning and development and clarification.'

		Condition B1 states, inter alia, as follows:-

			'PRIOR TO THE COMMENCEMENT OF DEVELOPMENT
			Contributions of:-

			(i)	£5,000 per house shall be paid by the Developer to the Council towards the cost of providing road infrastructure as shown in the Wicklow County Development Plan.
			(ii)	Together with improvements to route R762 beyond the front edge of this site.'

	9.	I say and believe that these conditions will ensure that the phased development on foot of this permission does not take place before the East-West Delgany by-pass route is in place.   I say and believe that the effect of Condition A5 is that any incremental increase in traffic will not significantly add to the current traffic loads in the areas of Delgany village and the road through Killincarrig will not be significantly affected by this development.

	10.	I say that the levy referred to at Condition B1 is sufficient to provide the necessary funds for work including work being carried out by the Council on route R762 which will overcome existing traffic hazards and provide proper footpaths notwithstanding that Condition A5 will have the effect of preventing a significant increase in traffic to create a traffic hazard on route R762.

	11.	I say that the duration of the planning permission was extended to eight years (Condition A2) to allow for development on foot of permission reg. ref. no. 96/5079 subsequent to the commencement of works by the Council on a new east-west Delgany by-pass.

	12.	In my opinion, development on foot of the Council's decision dated 25th August, 1997 under reg. ref. no. 96/5079 is consistent with the proper planning and development of the area and in accordance with the County Development Plan.  I say that having regard to the conditions attached to the Council's decision to grant permission under reg. ref. no. 96/5079, development can be carried out without the negative impacts identified by An Bord Pleanala in their reasons for refusal under reg. ref. no. 95/2458.

	13.	I say that contrary to the averments contained in the grounding affidavit of Michael O'Neill, there are material differences between the planning applications under reg. ref. nos. 95/2458 and 96/5079.  In my opinion, the Council has dealt with the notice party's application under reg. ref. no. 96/5079 in a materially different manner having regard, inter alia, to the number of dwellings involved; the phased development proposed (as referred to at Condition A5 of the Council's decision dated 25th August, 1997):  The Council's current strategy of levying development within the Delgany traffic envelope at £5,000 per house (Condition B1) and the extended duration of the life of the permission (Condition A2); the decision by the Council to bring forward the time scale for construction of the Delgany east-west by-pass and the availability of land to the east of the notice party's site along the route of the R762 regional road for road improvements to R762.

	14.	I say that in arriving at its decision on the 25th August, 1997, the Council had regard to all the relevant material at that time before it including the reasons for refusal contained in the decision of An Bord Pleanala under reg. ref. no. 95/2458; and the legitimate planning concerns expressed in all submissions to the Council."
	Mr. O'Brien also referred to and exhibited correspondence regarding the applicant's appeal to An Bord Pleanala about the granting of planning permission by the respondent to the notice party in respect of its application No. 96/5079.
	In its statement of opposition, the respondent has pleaded, inter alia, that the principle of res judicata does not apply to its decision to grant planning permission to the notice party in respect of its application No. 96/5079 and that it is not estopped from determining that application by the decision of An Bord Pleanala in relation to permission granted by the respondent on foot of the notice party's earlier application No. 95/2458.  The local authority contends that there has been material change of circumstances since the decision of An Bord Pleanala on the original application.  Further affidavits have been sworn by Mr. O'Neill and Mr. O'Brien in which the controversy between them regarding the two applications for planning permission made by Avmark Limited have been carried further.  However, the issue as to the extent of similarity between the applications remains unresolved.
	The net issue for determination is whether the applicant has established that there is no real distinction between the first and second applications for planning permission made by the notice party to the respondent; that such differences which exist between them are insignificant and do not open the way for a departure by the respondent from the decision of An Bord Pleanala refusing planning permission for the first proposed development and, in particular, that they do not materially affect the reasons specified by the Board for its refusal of permission.  If the applicant can establish such a connection between the notice party's first and second applications for planning permission, then it would follow that the doctrine of res judicata applies and, in the absence of changed circumstances, the respondent would be obliged in law to refuse permission for the second development, being bound by the decision of An Bord Pleanala in refusing permission on appeal from its original decision.
	In order to succeed in its application at this stage of the proceedings for liberty to proceed against the respondent by way of judicial review of its order granting planning permission to Avmark on application No. 96/5079, the applicant must establish that there are substantial grounds for contending that it is entitled to the reliefs which it claims against the respondent - see judgment of the Supreme Court in Scott -v- An Bord Pleanala, [1995] 1 I.L.R.M. 424 and of Carroll J. in McNamara -v- An Bord Pleanala & Kildare County Council & Ors., [1995] 2 I.L.R.M. 125.  The real issue now before the court is not whether the doctrine of res judicata applies but whether there is evidence to establish that in fact there is no real distinction between the two Avmark applications for planning permission and the extraneous factors relating thereto regarding road development in the area.  Two points emerge clearly from the affidavits of Mr. O'Neill, Mr. McHugh and Mr. O'Brien.  First, that there is substantial controversy between the parties on the foregoing issue and, secondly, that the controversy relates to factual planning matters, the assessment of which is outside the competence and authority of the court and is specifically within the ambit of An Bord Pleanala.  I am satisfied that in the premises the only course open to the applicant was to appeal to An Bord Pleanala the second planning permission granted by the respondent.  The Board is in the best possible position to assess whether or not the second Avmark application and the terms imposed by the respondent in respect of it are so closely related to the first application and its conditions as to be in practical terms on all fours with it.  If the Board comes to that conclusion then it will allow the appeal and overrule the permission granted by the respondent on the second application made by the notice party.  It also seems to me that if the applicant's case as to the close connection in practical terms between the two applications is well founded, it is unlikely that there will be any need for the Board to direct another full scale public enquiry by way of appeal hearing.  It is probable that written submissions to the Board would be sufficient to enable it to decide on the extent of similarity between the respective planning permissions and whether or not there is any real distinction between the permissions purported to have been granted by the respondent on each of them.
	For the foregoing reasons, this application is refused.