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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dietacaron Ltd. v. An Bord Pleanala [2004] IEHC 332 (13 October 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/332.html Cite as: [2005] 2 ILRM 32, [2004] IEHC 332 |
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[2004] IRHC 332
[2003 No. 856 J.R.]
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
JUDGMENT of Mr. Justice Quirke delivered on the 13th day of October 2004.
By order of the High Court (O'Neill J.) dated 24th day of November, 2003 the applicant was given leave to apply by way of judicial review for an order of Certiorari quashing a notice which was issued by the respondent on the 25th day of September, 2003 pursuant to article 73 of the Planning and Development Regulations 2001(hereafter "the 2001 Regulations"). The notice purported to defer consideration of an appeal (reference no. P.L. 06S200407) which was then before the respondent (hereafter "the Board") and invited the first named notice party ("Everglade") to submit revised drawings and other particulars in relation to the appeal.
Leave was also given to the applicant to seek a variety of declaratory and other reliefs, additional and ancillary to the substantive order quashing the notice.
FACTUAL BACKGROUND
The development was to include, inter alia, residential, retail and commercial units covering an area of 130,190 sq. metres, with some buildings ranging 6, 7 and 8 stories in height over street level. It was to be constructed on a site comprising 8.90 hectares (part of a larger 15.4 hectares site owned by Everglade).
"...decided to defer consideration of this case and to invite the applicant to submit revised drawings and other particulars in accordance with the provisions of Article 73 of the Planning and Development Regulations 2001 modifying the proposed development.... "
Under the heading "Principle of Development" the Notice indicated that:
"The Board has decided to determine the instant appeal on the basis of the proper planning and sustainable development of the area... the Board considers that the site of the proposed development is generally suitable for development of the type proposed including the quantum of retail space. In reaching this conclusion the Board has had regard to the Strategic Planning Guidelines for the Greater Dublin Area, to the Retail Planning - Guidelines for Planning Authorities... to the provisions of the development plan for the area, to the planning history
of the site, to its central location in relation to development in the greater Lucan/Clondalkin area to the proximity to the railway line limited impact on the national road and motorway system and to forthcoming improvements to the transportation infrastructure serving the area. However as currently designed, the development is not acceptable and requires modification. "
The Notice included observations on urban design framework, the architectural concept, the street hierarchy, the residential element, office parking, the development of lands to the north of the development, the rail station, the motorway, community facilities, phasing and some drawings and models.
Under the heading "Modification of Proposed Development" the Notice provided that:
"The above is an outline of the main problems pertaining to the project. The applicant is invited, in accordance with the provisions of Article 73 of the Planning and Development Regulations 2001 to submit 7 no. copies of revised drawings, 80 no. copies of modified Environmental Impact Statement (including analysis of sunlight/daylight) and models to address these points and in accordance with the details set out below.... "
Under the heading "Modifications and Further Information Necessary" the Notice indicated that:
"The modified design should provide the following:
1. A hierarchy of public streets and public spaces which maximises permeability and connectivity with adjoining lands. This should include a tree-lined primary street network linking main specific spaces together with a coherent pattern of secondary and tertiary streets. Dead frontage should be minimised.
2. A decreased plot ratio and a reduction in the general height of the development by two floors, punctuated by the introduction of some higher buildings at model points.
3. Omission or significant modifications of the podium.
4. A reduction in the total number of residential units, a significant decrease in the amount of student housing and a substantially increased proportion of two and three bedroom units.
5. Enhanced environmental conditions for residential accommodation by increased spacing between blocks, improved sunlight penetration and omissionlreduction of deck access units.
6. A reduction in the quantum of office accommodation and/or increased parking provision to serve such development.
7 Omissions/re-design of Block J and the hotel.
8. More detailed proposals in relation to the siting, design and funding of the railway station, in order to give assurance, regarding the development of this facility.
9. More detailed proposals in relation to treatment of the motorway reservation and its possible future development. Omission of any development over the reservation in the immediate future.
10. Inclusion of additional community (leisure-sports or cultural facilities) to cater for the substantial population in the development.
11. More precise information regarding possible phasing.
12. Improved presentation of information in drawn form and provision of models."
The notice continued:
"Upon receipt of the requested modifications and further information it is likely to be necessary to give further public notice in relation to the modified proposals and EIS and to consider re-opening of the oral hearing.
In accordance with s. 132 of the Planning and Development Act 2000 you are required to submit on or before 20`h February, 2004 particulars and documents prepared pursuant to this information."
"Should the applicant respond to the Board's invitation you will be afforded the opportunity to comment on the submission pursuant to the provisions of s. 131 of the Planning and Development Act, 2000.
You are reminded that s. 127 (3) of the Planning and Development Act 2000 provides that an appellant shall not be entitled to elaborate in writing upon or make further submissions in writing in relation to the grounds of appeal stated in the appeal or to submit further grounds on appeal and any such submissions shall not be considered by the Board. Your submission is herewith returned to you/"
uses in the original application and there is an alteration in the massing and a differentiation of height throughout the development; and, (vii) although the overall quantum of retail floor space remains the same, the design year has changed from 2006 to 2009.
By letter dated 28th May, 2003, the Board informed Everglade that "due to unforeseen circumstances... " it would not be in a position to determine the appeal before that date. It indicated that it had set a "... target date of before 24`h July, 2003... " for the determination of the appeal. The appeal was not determined before 24th July, 2003.
A number of further "target dates " were set by the Board throughout August and September. Finally, on or about the 25th September, 2003, the Notice was served by the Board upon Everglade requiring the submission of the revised plans, drawings and particulars on or before 20th February, 2004.
THE APPLICANTS' CLAIM
The claim advanced on behalf of the applicant is twofold.
It is contended that:
planning application that they exceed "modification" of that application and comprise the submission of a new planning application in respect of a development which is fundamentally different from the development which is the subject matter of the appeal before the Board. Accordingly, it is argued, the notice has been issued by the Board "ultra vires" and is accordingly unlawful and invalid, and should be quashed and
that... (the appeal) is... disposed of as expeditiously as may be and ...that... there are no avoidable delays at any stage in the determination of .... "the appeal. It is accordingly argued that the Board's decision to issue the Notice has been made ultra vires and is unlawful and invalid, and should be quashed on that ground also.
THE BOARD'S RESPONSE
The Board contends that the decision to issue the Notice was made by the Board lawfully and intra vires pursuant to the provisions of article 73 of the 2001 Regulations.
Ms. Butler S.C. on behalf of the Board argues that the Board is lawfully authorised by article 73 to invite Everglade to submit to the Board...
"Revised plans or other drawings modifying. or other particulars providing for the modification of, the development to which the appeal relates ... ".
She says that the invitation contained within the Notice is to submit revised plans and other particulars which would have the effect of reducing the scale of the original development and reconfiguring elements within it. She rejects the contention that the revisions sought so fundamentally alter the essential nature and character of the development as to comprise the submission of a new planning application for a wholly different development.
The Board also rejects the applicant's contention that it has acted in breach of the provisions of s. 126 of the Act of 2000. It contends that it has taken such steps as are open to it to ensure that, insofar as is practicable, there were no avoidable delays in determining Everglade's appeal.
It argues that the requirement to ensure that every appeal or referral is determined within a period of eighteen weeks from the date of receipt of the appeal is expressly stated to be "... the objective of the Board... " and is not a mandatory requirement.
Furthermore, it says that discretionary powers, including the powers set out in article 73 of the 2001 regulations, cannot be characterised as only being available in circumstances where the exercise of those powers does not inhibit the general duty
and objective set out in s. 126 of the Act of 2000.
Ms Butler additionally contends that the applicant will not be prejudiced by the issue of the Notice. She says that it remains open to the Board to invite further submissions from interested parties and from the public in relation to the revised application, and to reopen the oral hearing if appropriate and points out that the Board has expressly indicated an intention to do so.
She says that the Board is empowered and is likely (a) to publish newspaper notices inviting submissions or observations, (b) to provide access to documentation
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and (c) to exercise additional powers for the purposes of providing public and other access to and participation in the planning process generally and this appeal in particular.
The Board, accordingly, contends that an application for relief of the kind sought is both premature and unwarranted.
RESPONSE ON BEHALF OF EVERGLADE
In response to the applicant's claim, Everglade has adopted the contentions of the Board arguing, with emphasis, that "reasonableness' is the appropriate standard of review in relation to the question as to whether or not the revised plans and particulars sought by the Board go beyond "modifications" and amount to an application for a new development.
An initial plea of a failure on the part of the applicant to comply with the provisions of O. 84, R. 21 and the mandatory requirements of s. 50 of the Planning and Development Act, 2000 was not relied upon by Everglade at the hearing.
Everglade (and the Board) acknowledge that prima facie the applicant has sufficient locus standi to seek the relief sought. However, since the applicant will be afforded an opportunity to make further submissions and observations (pursuant to the provisions of s. 131 of the Act of 2000), Everglade argues that the applicant has not been prejudiced by any alleged defect in the Notice and, accordingly, does not have sufficient locus standi to seek or obtain the relief sought.
Whilst Everglade argues that there has been no breach by the Board of the provisions of s. 126 of the Act of 2000, it contends, additionally, that the provisions of that section are intended for the benefit of an applicant for planning permission (such
as Everglade) and are not actionable at the suit of any other party.
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Furthermore, it is claimed that the requirements of the section are subject, and must yield, to the need to ensure fair procedures in accordance with the requirements of natural and constitutional justice, even where this results in delay.
RELEVANT LEGISLATIVE PROVISIONS
Section 142 of the Act of 2000 provides, inter alia, as follows:
"(2) Without prejudice to the generality of subsection 1, regulations under this section may enable the Board where it is determining an appeal under section 37 to invite an applicant and enable an applicant so invited to submit to the Board revised plans other drawings modifying or other particulars providing for the modification of, the development to which the appeal relates."
Article 73 of the 2001 Regulations provides as follows:
"The Board may, when considering an appeal under section 37 of the Act, invite the applicant for the permission concerned to submit to the Board revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the appeal relates and an applicant so invited may submit to the Board such number of plans, drawings or particulars as the Board may specify."
Section 34 of the Act of 2000 empowers a planning authority to determine an application which is made to such authority for planning permission and to decide to grant permission subject to, or without, conditions. Subsections (2), (3) and (4) of that section prescribe the nature and extent of what must be taken into consideration by the
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Planning Authority and the nature and extent of any conditions to which the permission may be subject.
Section 37 of the Act of 2000 provides inter alia as follows:
1. (a) An applicant for permission and any person who made submissions or observations in writing in relation to the planning application to the planning authority in accordance with the permission regulations and on payment of the appropriate fee, may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.
(b) Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given and subjections (1), (2), (3), and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection and they apply in relation to the determination under that section of an application by a planning authority.... "
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Section 126 of the Act of 2000 provides inter alia as follows:
(1) It shall be the duty of the Board to ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, insofar as is practicable, there are no avoidable delays at any stage in the determination of appeals and referrals.
(2) Without prejudice to the generality of subsection (1) and subject to subjections (3) (4) and (5) it shall be the objective of the Board to ensure that every appeal or referral is determined within -
(a) a period of 18 weeks beginning on the date of receipt by the Board of the appeal or referral or
(b) such other period as the Minister may prescribe....
(3) (a) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of an appeal or referral or because of the number of appeals or referrals which have been submitted to the Board, to determine the appeal or referral within the period referred to in paragraph (a) or (b) of subsection (2), as the case may be, the Board shall, by notice in writing served on the parties to the appeal or referral before the expiration of that period, inform those parties of the reasons why it would not be possible or appropriate to determine the appeal or referral within that period and shall specify the date before which the Board intends that the appeal or referral shall be determined, and
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shall also serve such notice on each person who has made submissions or observations to the board in relation to the appeal or referral.
(b) Where a notice has been served under para. (a), the Board shall take all such steps as are open to it to ensure that the appeal or referral is determined before the date specified in the notice."
THE ISSUE
The fundamental relief sought in these proceedings is an order quashing the Notice and the decision of the Board which gave rise to it. The other reliefs sought are ancillary to, and dependent upon, the grant of that substantive relief.
The applicant claims that the Notice must be quashed because it was issued unlawfully pursuant to a decision which the Board was not empowered or entitled to make.
Accordingly, the only issue for deternunation in these proceedings is whether or not the Board was empowered and entitled in September 2003, to decide to defer consideration of Everglade's planning application, and to invite Everglade to submit revised drawings and other particulars in accordance with the provisions of article 73 of the Regulations.
If the Board was so empowered and entitled, then the applicant's claim fails. If the Board was not so empowered and entitled, then the applicant is entitled to the reliefs which it seeks.
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I. Modification.
It has been acknowledged on behalf of the parties that the 2001 Regulations have been validly made pursuant to the provisions of s. 142 of the Act of 2000 and that article 73 of those Regulations lawfully and validly enables the Board when considering an appeal under s. 37 of the Act of 2000 to "invite the applicant for the permission concerned to submit to the Board revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the appeal relates... "
It is further acknowledged that the appeal which is the subject of these proceedings comprises "... an appeal under s. 37 of the Act... ", so it is indisputable that the Board was lawfully entitled to make a decision to invite Everglade to submit revised drawings and other particulars to the Board which modified or "... provided for the modification of... " the development to which the appeal related: The Notice, which is dated the 25`~ September, 2003, commenced by referring to Everglade's appeal and continues
"The Board has decided to defer consideration of this case and to invite the applicant to submit revised drawings and other particulars in accordance with the provisions of Article 73 of the Planning and Development Regulations 2001 modifying the proposed development ".
The Notice therefore comprised formal notification to Everglade that the Board had made a decision which was prima facia was lawful.
Under the heading "Principle of Development ", the Notice described the basis upon which the Board had decided to determine the appeal and continued "... the Board considers that the site of the proposed development is generally suitable for
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development of the type proposed including the quantum of retailed space... However as currently designed the development is not acceptable and requires modification " .
The decision of the Board to determine the appeal "...on the basis of the proper planning and sustainable development of the area... "could hardly have been challenged and, indeed, has not been, in these proceedings.
Similarly the Board's conclusion that "the site of the proposed development is generally suitable for development of the type proposed... however, as currently designed, the development is not acceptable whereas modification... " is a conclusion which is clearly infra vices the Board.
Having made a lawful decision as to the basis upon which the appeal should be determined and having reached a lawful conclusion that the development, as then designed, was not acceptable and required modification, the Board was entitled to exercise the power conferred upon it by article 73 of the 2001 Regulations to invite Everglade to submit revised drawings and other particulars modifying the proposed development.
What has been challenged by the applicant is the nature of the revisions invited by the Board and described as "modification" and, in particular, the nature and scale of the revisions invited by the Board under the heading "Modifications and Further Information Necessary" within the Notice.
The applicant contends that what is described in the Notice as "modifications" go far beyond that term and amount to changes so fundamental that they create a new and entirely different development from that which is the subject of the appeal.
Mr. Holland S.C., on behalf of the applicant, argues that a decision by the Board to grant or refuse permission in respect of a development so radically changed would amount to a decision by the Board on a planning application at first instance.
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He says that the Board has no jurisdiction to make such a decision and he says that the applicant's challenge to the Board's decision is jurisdictional in nature and is not, based on any alleged irrationality.
He does, however, rely, in the alternative, upon the argument that the Board could not have rationally or reasonably decided that the changes required amounted to anything other than a new planning application to be determined at first instance. He says that, acting rationally and reasonably, the Board could not have considered the changes which it required to be "modifications" in respect of the development under appeal.
Noting that no definition of the word "modification" is provided in the Act of 2000, or in the 2001 Regulations, he argues that the terra must be given a literal or purposive construction and says that the application of either construction supports the applicant's contention.
The application of a literal construction of the term "modification " would require this Court to conduct a detailed examination or review of the changes or "modification" invited by the Board and to attempt to make a comparison between the development under appeal before the Board and the type of development which the Board would be required to adjudicate upon following receipt by the Board of the revised drawings and particulars.
Although a "non-technical" summary of the environmental impact statement in respect of the revised development was adduced in evidence, the court is conscious of the fact that what has been challenged in these proceedings is the decision of the Board to invite the submission of revised drawings and particulars.
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The literal construction of the term "modification " (within article 73 of the 2001 Regulations) would not appropriately permit the court to place reliance upon the actual response by Everglade to the invitation from the Board.
What would require to be examined and compared would be (a) the development which is the subject of the appeal and (b) the development (or range of developments) which the Board would be required to consider and adjudicate upon assuming submission by Everglade of revised drawings and particulars.
The application of a purposive construction of the word "modification" would require the Court to seek to "...give effect to the true purpose of legislation... " (see Pepper -v- Hart [1993] A C 593 per Griffiths L.J. at P617.)
This would require the Court to examine and review all of the legislative provisions relevant to what has been described in these proceedings as "... the scheme of the Act... " in order to discover the "... true purpose of the legislation... "
Mr. Holland argues on behalf of the Applicant that by applying either the literal or purposive approach to the construction of the term "modification ", or by applying a combination of the two, the results must inexorably result in the conclusion (i) that the changes in modifications which are invited so radically alter the development that they comprise a new development to be determined at first instance. He says that such an application would be contrary to the "purpose of the legislation..." and ultra vices the Board.
He relies further upon the decision of the High Court (McGuinness J.) in Wicklow Heritage Trust -v- Wicklow County Council (1998) 1 E.H.C. 19 as authority for the contention that, in particular cases, the court may, and perhaps should, take upon itself the function of deciding (on given facts) whether particular grants of planning permission materially contravene statutory county development plans.
It is well settled that the Court has such a jurisdiction (see Attorney General (McGarry) -v- Sligo County Council [1991] LR. 99).
In Tennyson -v- Corporation of Dun Laoghaire [1991] 2 LR. 527, the High Court (Barn J.) confirmed the jurisdiction and observed (at p. 535) that:
"In the light of these authorities it seems to me that a court in interpreting a development plan should ask itself what would a reasonably intelligent person, having no particular expertise in law or town planning, make of the relevant provisions?"
This is so because a statutory development plan comprises a statement of the objectives and policies of the planning authority by whom it is published. The interpretation of objectives and policies requires no particular competence or expertise. The contents of the development plan are intended to be read and understood by members of the public for whose benefit the plan has been prepared.
The court, in considering whether or not there has been a material contravention of published objectives and policies, need do no more than place itself in the position occupied by any reasonably intelligent member of the public in order to understand what is intended by the provisions of the plan.
Where the Board, in exercise of the statutory planning powers conferred upon it by the legislature is engaged in the detailed and complex planning process authorised by the relevant legislation the position is entirely different. In such circumstances the Board, with the assistance of professionally qualified experts, is often required to make judgments on a wide variety of issues, many of them complicated and many of them technical in nature.
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The development which is the subject of these proceedings provides an excellent illustration of the enormous scale and complexity which can sometimes be present within a single planning application.
Any "modification" of a development as large and complex as the development under review is likely to have wide ranging implications and to require changes on a significant scale.
The assessment of the nature and extent of such "modifications " and the conduct of a comparison in order to establish whether the changes invited so radically alter the nature of the development as to comprise a new planning application is not a matter which could safely or reasonably be undertaken by the court placing itself in the position occupied by a reasonably intelligent member of the public.
The principles applied by the courts relative to the material contravention of statutory development plans are accordingly quite different from the principles which will be applied to the issue which is to be determined in this case.
In support of the applicant's contention Mr. Holland relies upon the dicta of Megarry J. in Legg & Others -v- Inner London Education Authority [1972] 3 All E.R. 177 (Ch D) and, in particular, the following extract from the decision of Matthew L. J. in Stevens -v- General Steam Navigation Company Limited [1903] 1 K B 890, 894.
"The process involved in "modification" is thus one of alteration, and must be considered how radical that alteration is. The alteration may consist of additions or subtractions or other changes in what is already there or, no doubt, any combination of these. But throughout, there must, I thinly be the continued existence of what in substance is the original entity. Once one reaches the stage of wholesale rejection and replacement, the process must cease to be one of modification ".
He pointed also to the following dicta of Megarry J. (at p188)
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" to some extent the matter must be one of impression. Nevertheless, however widely one construes modification, it seems to me that the difference between the proposals is so great that one cannot reasonably regard the second as a modification of the first... "
In that case the Court was considering the approval of the Secretary of State for Education to amalgamate certain schools.
It was not disputed that the so called "amalgamation" in fact amounted to the closure of one of the schools so that it would cease to exist. The court held that "... the process involved in modification was one of alteration, but throughout that process there had to be continued existence of the original entity; when the process had reached the stage of wholesale rejection and replacement the process ceased to be one of modification.. "
It is not without significance that in that case the court was not required to make a factual determination of the kind suggested in the instant case.
In these proceedings, Everglade's response to the Board's invitation was adduced in evidence. Emphasis was placed by the applicant upon the substantial differences in design and specification between the revised drawings and particulars and the original planning application.
I did not find that evidence to be particularly helpful for two reasons namely:
1. The decision challenged was the decision of the Board to issue the Notice having regard to its contents. Although the Board has tacitly acknowledged that prima facie Everglade's response is not necessarily outside the terms of the Notice, it is, nonetheless, open to all of the participants within the planning process to make submissions to the Board challenging the revised application on grounds that it does not come within the terms of the Notice or, indeed, on grounds that the revised
which is under appeal, and
2. the evidence which was adduced comprised a "non-technical summary" of
the environmental impact statement relevant to the revised development. It seems
likely that this document was intended to give the court an idea or flavour or
"impression" of the nature and extent of the changes or "modifications" proposed in
the revised drawings and particulars. It is certainly correct to state that such a
summarised and "non-technical" document comprised all (if not more) than the court could readily comprehend as to the nature and extent of the "modifications" submitted by Everglade. However, it would be inappropriate for this court to make a determination of a kind required based entirely upon the flavour or "impression" created by a non-technical summary of detailed planning designs and particulars.
The fact that a summarised and "non-technical" form of evidence had to be adduced, however, fortifies the view that, in general, courts should be reluctant to interfere with the decisions of experts in planning matters.
There is no doubt that a decision made by a planning authority or indeed by the Board in excess of jurisdiction is judicially reviewable and may be quashed by the courts.
Mr. Holland argues that it is appropriate and, indeed, the function of this Court to examine carefully and review the changes or "modifications" which the Board has invited for the purpose of establishing whether or not those changes alter the proposed development in the manner alleged.
issue.
The court is, therefore invited to make a finding of fact inconsistent with the view of the Board (as expressed in the Notice). It is contended that, to resolve the resultant conflict, the court should prefer its own view and quash the Board's decision.
I do not accept that it is the function of this court to conduct an examination or make an assessment of the kind contended for
It has been repeatedly stated by the courts within this jurisdiction that decisions to grant or refuse planning permission are administrative decisions reviewable by the courts on well established principles. The courts are not concerned with the merits of the decision but with the manner in which the decision-makers have exercised the power.
In White -v- Dublin City Council (Unreported, Supreme Court, Fennelly J., 10th June, 2004), considering the nature of the discretion enjoyed by a planning authority to invite the submission of plans or drawings modifying a development, indicated (at p. 11) that:
"I would certainly be prepared to accept that the Court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr. Rose were a substantive decision of the Planning Authority or of An Bord Pleanala to grant planning permission in spite of the degree of over looking of the Whites property, in circumstances where the Whites had been on notice and whether or not they had objected it, would have been extremely dijf cult if not impossible to quarrel with it, still less judicially review it".
The court went on to decide that case on grounds of irrationality.
Mr. Holland, on behalf of the applicant, argues that on its own facts the court should decide this case on the basis of jurisdiction and not on the basis of "rationality" or "reasonableness ".
Section 37. 1.(b) of the Act of 2000 provides that in an appeal such as this "... the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the Planning Authority as from the time when it was given... "
Thereafter subsections (1), (2), (3) and (4) of section 34 are applied to the determination of the application by the Board on Appeal.
Everglade's appeal to the Board is subject to the requirement of an environmental impact assessment and the Board is required to have regard to the environmental impact statement submitted and to any supplementary information furnished which relates to the statement and to any submissions or observations furnished concerning the effects on the environment of the proposed development.
What has been described in these proceedings as "... the scheme of the Act... " and, indeed, the entire legislative planning process within this jurisdiction is organic in nature (both at first instance before the Planning Authority and subsequently on appeal to the Board).
Dialogue between an applicant and a decision making body is often expressly contemplated and permitted by the legislation, provided that other participants (including members of the public) are notified of such dialogue and permitted to participate in the process.
It is that right of public participation in the planning process that the courts will be concerned to protect and vindicate.
In British Telecommunications Plc-v- Gloucester City Council (2002) JPL 993 The High Court of England and Wales (QBD Administrative Court - Elias J.) observed at (P 1002) that:
"It is inevitable in the process of negotiating with officers and consulting with the public that proposals will be made or ideas emerge which lead to a modification of the original planning application. It is plainly in the public interest that proposed developments should be improved in this way. If the law were too quick to compel applicants to go through all the formal stages of a fresh application, it would inevitably deter developers from being receptive to sensible proposals for change. In my view the following observations of Lord Keith in Inverclyde District Council-v- Lord Advocate (1981) 43PCR 375 are relevant, albeit made in a different context:
`this is not a field in which technical rules would be appropriate; the Planning Authority much simply deal with the application procedurally in a way just to the applicant in all the circumstances. There was no good reason why amendment of the application should not be permitted at any stage if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided on'.
I would add that of course the interests of the public must also be fully protected when an amendment is under consideration. They were, however, fully protected in this case by the detailed consultation that took place in respect of the amendments. "
The court went on to consider the distinction between an amended application and a fresh one indicating:
"It may be that legislation has been introduced which would catch a fresh application but not an amendment... even then, in my judgment the question remains whether the change is so substantial that the application can only be considered fairly and appropriately, bearing in mind both the interest of the applicant and potentially interested members of the public by requiring a fresh application to be lodged. If the planning officer considers that it can be fairly and appropriately considered by an amendment, and that is not an unreasonable conclusion in the circumstances, the courts should not interfere".
Whilst the legislative planning process considered by the court in that case is not identical to the process under consideration by this court, the principle identified in that case and the test to be applied are both relevant to the facts of the instant case.
Mr. Holland S.C. points out that in The State (Abenglen Properties Limited) v. Dublin Corporation [1984] LR. 381, The Supreme Court (Walsh J.) appeared to carry out an examination of the details of a planning application and to have expressed the view that a particular grant of planning permission exceeded what would have been permitted in accordance with a power to make "modifications".
However, that case concerned the alteration of a planning permission by way of condition and the extract relied upon comprised obiter dicta which do not bear directly upon the facts of the instant case.
Circumstances may arise where it would be appropriate for this court to intervene on grounds of jurisdiction in relation to a decision of the Board made in the planning process pursuant to the Board's statutory powers. However, I am satisfied that no such circumstances are present in the instant case.
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The decision sought to be impugned in these proceedings was an administrative decision concerning planning policy. As such it can only be challenged on grounds of irrationality of the kind identified by the courts in Keegan v Stardust [1986] IR 642 and O'Keeffe v An Bord Pleanala [1992] ILRM 237 and the type of unreasonableness identified in the extract from British Telecommunications plc v Gloucester City Council referred to above.
Applying the appropriate test to the facts of this case, I am satisfied that the Board had more than sufficient material before it upon which it could rationally and reasonably have made the decision which it made and I have no hesitation in showing curial deference to the Board in respect of that decision.
Since the applicant has failed to discharge the onus of proving that the decision of the Board to seek the revised drawings and particulars sought was irrational or unreasonable it follows that the Notice should not be quashed on that ground.
2. Delay contrary to s.126 of the Act of 2000.
The general duty of the Board is pursuant to s126 of the Act of 2000 is;
" . . . to ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, insofar as is practicable, there are no avoidable delays at any stage in the determination of appeals and referrals. "
The stated "objective" of the Board to ensure that appeals are determined within a period of eighteen weeks is described in sub-s. (2)(a) of s. 126, but is heavily qualified and contemplates circumstances where it is not ". . . possible or appropriate,
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because of the particular circumstances of an appeal . . . to determine the appeal . . . within the period referred to . . . "
In such circumstances the Board is required (a) to notify parties to the appeal within specified times of the reasons for the delay in determination of the appeal and (b) to specify a new estimated date for determination
In the instant case, Everglade appealed by letter dated 28th August, 2002 against the Council's refusal. On 7th January, 2003, just prior to the stated "objective " eighteen week period, the Board notified Everglade that it intended to determine the appeal before the 30th May, 2003.
By letter dated 28th May, 2003, the Board informed Everglade that "due to unforeseen circumstances... " it would not determine the appeal before that date. It indicated that it had set ".. a target date of before 24th July, 2003... "for determination of the appeal.
The appeal was not, in fact, determined before the 24th July, 2003, and a number of further "target dates" were fixed by the Board throughout August and September 2003. Finally on 25th September, 2003, the Notice was served by the Board upon Everglade. It invited submission of the revised plans, drawings and particulars on or before 20th February, 2004.
On behalf of the applicant, Mr. Holland points out that there have been nine deferrals by the Board. Most of these post-dated the oral hearing and the service of the Notice has had the effect that the most recent deferral is sine die.
Mr Holland claims that the delay occasioned by these deferrals was "avoidable" within the meaning of s. 126 of the Act of 2000 and amounted to a breach of the provisions of the Act. He argues further that the Board's delay deprives the
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applicant of natural and constitutional justice because it has unnecessarily postponed consideration of the proposed development.
Everglade has argued that whilst the applicant had sufficient locus standi to seek the relief sought in these proceedings, it does not have sufficient locus standi to seek the relief on the grounds of delay contrary to the provisions of s. 126 of the Act of 2000 because the provisions of the section are intended for the benefit of an applicant for planning permission (such as Everglade). It is argued that the delay complained of is actionable at the suit of Everglade, but not at the suit of any other person.
The applicant's principal interest in Everglade's planning appeal comprises a right, governed by statute, to participate in that appeal and in the planning process associated with it. That right includes a right to express views on the proposed development and to have those views considered and taken into account by the Board before any decision is made.
The applicant has an additional interest in the appeal arising from its ownership of land immediately adjoining the proposed development.
The nature and extent of the applicant's interest in the appeal does not deprive it of locus standi to seek the relief sought on the grounds of delay. However, the weight which the court will attach to a complaint of delay by the Board in its procedures will normally take into account the nature and extent of the applicant's interest in those procedures.
Whilst the provisions of s. 126 of the Act of 2000 would appear to have been enacted primarily for the benefit of an applicant for planning permission, it is unlikely that they are not actionable at the suit of any other party. In this case it is unnecessary for the court to make an express finding on that issue.
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Common sense dictates that the scale and proportions of Everglade's proposed development were such that it would have been difficult for the Board to consider and determine the appeal within the type of timefrarne which it would normally allot to appeals in respect of routine planning appeals.
I am not satisfied on the evidence that the delay on the part of the Board in determining this appeal has been "avoidable " within the meaning ascribed to that word by sub-s. 1 of s. 126 of the Act of 2000.
I am satisfied on the evidence that the applicant has been in no way prejudiced by the deferrals of which it complaints and will have ample opportunity to participate fully in all stages of this appeal and in the planning process relevant to it. I am satisfied also that public participation in this process has not been in any way undermined by any delay on the part of the Board avoidable or otherwise.
The relief which has been sought by the applicant in these proceedings is discretionary in nature. Even had there been technical breaches by the Board of individual provisions of s. 126 of the Act of 2000 (and I do not find that there have been such breaches), I do not think that, on the facts of this case, it would have been appropriate for the court to exercise its discretion to quash the Board's decision on grounds of such technical breaches, or on grounds of the delay complained of by the applicant.
It follows, therefore, that the applicant's claim for relief on this ground fails
also.
Approved by Quirke J.