LAW and the ENVIRONMENT 2005

Third Annual Conference for Environmental Professionals

“An Analysis of the Practical Implications

of Recent Judicial Review Decisions”

Eamon Galligan S.C.

Thursday, 14th April 2005

Boole Lecture Theatres 1 and 2

University College Cork

1.0  INTRODUCTION

There have been quite a number of judicial review decisions with significant implications for legal practitioners, planners, architects and others involved in planning and environmental issues since last year’s conference. Section 50 of the Planning and Development Act, 2000 which provides for the judicial review of planning decisions and certain other decisions of the local authority which may have environmental implications is still a comparatively new statutory provision. Issues relating to the locus standi or standing of applicants challenging these decisions are still emerging.

The operation of the new declaration procedure under section 5 of the 2000 Act has also highlighted procedural deficiencies of this provision. Some of these procedural deficiencies have arisen in cases which have not resulted in written judgments of the courts but the outcome of which it may be useful for practitioners to consider.

The policy of “curial deference” of the courts in respect of decisions of An Bord Pleanála in the context of determining whether a material change of use has occurred has been crystallized in the judgments of Keane, C.J. in Grianan An Aileach Interpretative Centre .v. Donegal County Council,[1] and more recently, in a decision of Quirke, J. in B&Q (Ireland) Limited .v. An Bord Pleanála.[2]

Another recent judicial review decision which I would like to briefly address is McDowell .v. Roscommon County Council[3]. This case is of interest in so far as the court’s conclusion that non-compliance with the terms of a planning permission (should it exist – a fact which was not the subject of consideration in that case) was not a relevant consideration for the purposes of the determination of an entitlement to an extension to the duration of a planning permission. Another case involving a little known personality related to a house in Merrion Square brought into the spotlight the procedures of planning authorities in issuing requests for further information as a device for extending the allowable period for the determination of planning applications.

SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 – “GOOD AND SUFFICIENT REASON”

The interpretation of the phrase “good and sufficient reason(s)” is used both in the context of applications for an extension to the period for bringing judicial review and in the context of an applicant’s locus standi. In two recent decisions, the phrase has been considered in these separate contexts.

The first of the these involved an unresolved factual issue as to whether a site notice had been erected in a proper manner in accordance with the requirements of the Planning & Development Regulations, 2001, and in particular article 19 thereof, was to ensure that the notice was easily visible and legible by persons using the public road. The judgment of Peart, J. in Marshall .v. Arklow Town Council (No. 2)[4] commenced with the likely Denning-esque passage, as follows:

“Nothing is more likely to disturb the peace and tranquility of a small rural neighbourhood than the unexpected commencement of building upon a site. When some mystery surrounds the identity of the developer, and when the development is one which has taken those in the neighbourhood by surprise, folk who normally enjoy a quiet and gentle disposition become agitated, and are want to don, for a time at least, the unfamiliar mantle of combatants supportive of those who wish to examine the process by which such a thing could happen. That is what has come to pass in the area of Tickknock Lane near Arklow, County Wicklow.”

At an earlier stage in the proceedings, Peart, J. gave judgment in relation to an application for an extension of the period within which to bring judicial review proceedings under section 50.[5] The issue was as to whether the delay in commencing the proceedings was such that the court ought to exercise its discretion under section 50(4)(a)(iii) of the 2000 Act, to extend the time for making application on the basis that the court “considers that there is good and sufficient reason for doing so”. Whilst the evidence in relation to the site notice was inconclusive, Peart, J. outlined the “good and sufficient reason” as follows:

“I am satisfied that the applicants have demonstrated good and sufficient reason as to why time ought to be extended. That reason is the fact that if the sign was in situ they did not see it, and therefore were not aware of the fact that time was running against them, and that when they realised the position, they acted as speedily as could be expected in the circumstances. This is a sufficient reason given also that by the 5th April, 2004 all parties were put on notice and given that the application was filed only fourteen days outside the eight week period, and that this is accounted for solely, in my view, because of the intervention of the Easter vacation period."[6]

In the substantive proceedings following cross-examination, Peart, J. concluded that the conflict of evidence as tot he existence or non-existence of the site notice was impossible to reconcile and that the court could not determine that factual issue with absolute certainty. Nonetheless, he accepted that even if the site notice was in place for the full five week period, none of the persons who had given evidence saw it despite the fact that they had passed by the location of the notice on frequent occasions. He concluded that it could not have been erected in such a manner or in a conspicuous position “so as to be easily visible and legible by persons using the road”, as mandated by article 19(1)(c) of the 2001 Regulations.

The question as to what constitutes “good and sufficient reasons” for the purposes of establishing the locus standi of an applicant to challenging a decision to grant planning permission by the planning authority in circumstances where the applicant has not lodged submissions or observations in relation to the application was considered in an ex tempore judgment of Quirke, J. in Moriarty .v. South Dublin County Council.[7] The applicant had successfully appealed against an earlier decision to grant permission to Lidl (Ireland) GmbH “Lidl”) for a discount store. The decision was refused on the grounds of material contravention of the South Dublin County Development Plan, 1999 having regard to the fact that the application site was located in an area zoned for industrial purposes where “major retail stores” were not permitted under the South Dublin County Development Plan, 1999. In October, 2004, a fresh application was made to South Dublin County Council which was considered by them to be an almost identical application. On this occasion, the planning application was made by the landowners and not by Lidl and the applicant did not become aware of the application until after a decision to grant had been made by South Dublin County Council. Prior to the decision being made by South Dublin County Council, a new Development Plan was adopted under the provisions of which the proposed discount store fell within the category of permitted development in the relevant use zone. However, the new Development Plan did not take effect pursuant to section 12(17) of the 2000 Act until a period of four weeks had expired from the date of its adoption. The result was that it did not come into effect until after the decision to grant permission was made, but before the grant issued. In the Planning Officer’s Report, it was clear that South Dublin County Council had regard to the provisions of the new plan and, in view of the proximity of the date when it would take effect, had decided to grant permission for the proposed development.

Section 50(4)(c) provides, in so far as relevant, as follows:

“(c) without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that –

(i)  the applicant –

(I)  in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development, …

or

(ii)  in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.”[8]

It was argued on behalf of the applicant that the proposed development was in material contravention of the Development Plan, and that the planning authority was obliged to publish a material contravention notice pursuant to section 34(6) of the 2000 Act in circumstances where it was minded to grant permission in material contravention of the Development Plan. By failing to publish such a material contravention notice, the applicant was denied this second opportunity to make submissions on the planning application which would have established his locus standi for the purposes of section 50(4)(c)(i)(II). In other words, the applicant would have qualified as a challenger on the basis that he was a person who had made submissions or observations in relation to the proposed development.

In granting leave to apply by way of judicial review, Quirke, J. accepted that these arguments constituted “good and sufficient reasons” for conferring locus standi on the applicant.[9]

The decision, whilst ex tempore, is a significant one as it provides an opportunity for an applicant who has failed to establish his or her locus standi by making a submission on the planning application to argue for such locus standi on the grounds that the proposed development would amount to a material contravention of the Development Plan. The facts in the Moriarty case were particularly strong, however. An Bord Pleanála had already made a decision three months prior to the second decision that an almost identical development would be a material contravention of the Development Plan. The applicant was also assisted in establishing the other locus standi requirement, i.e. that he had a “substantial interest in the matter which was the subject of the application”, by the fact that he had appealed against the earlier decision to grant and this appeal had resulted in the conclusion that the proposed development amounted to a material contravention of the Development Plan.

The decision is consistent with the judgment of Costello, J. in Brady .v. Donegal County Council where he held that the previous “un-expandable” two month time limit under section 82(3A) of the Local Government (Planning and Development) Act, 1963, as amended, was unconstitutional, as it did not provide a saver for an extension in circumstances where a statutory notice of the proposed development was not published in accordance with the requirements of the permission regulations. The decision of Costello, P. was appealed to the Supreme Court, the matter was subsequently remitted by the Supreme Court to the High Court to adjudicate on the factual issue as to whether the Derry Journal was a newspaper circulating in the area of the proposed development and the case subsequently settled. However, the observations of Costello, P. on the constitutionality of the previous time limit was undoubtedly a consideration in the inclusion of the provision for an extension of the period under section 50.

DECLARATION PROCEDURE UNDER SECTION 5 OF THE PLANNING AND DEVELOPMENT ACT, 2000.

The wording of section 5 of the 2000 Act is likely to give rise to continuing practical difficulties. An application may be made by a third party to the planning authority for a declaration where a question has arisen as to whether development or exempted development has taken place on a particular premises. The section does not mandate that the owner or occupier of the property affected should be notified so as to be afforded an opportunity to make observations in relation to the declaration. Whilst it would be open to the planning authority to seek submissions from the owner or occupier in accordance with the principles of fair procedures, time limits imposed by the section tend, in practical terms, to militate against the planning authority taking such a course. More seriously still, the section does not oblige the planning authority to issue notification of the declaration to the owner or occupier of the premises concerned. The difficulty here is that unless a person is issued with a declaration under section 5, he or she does not have the locus standi to request a review of the declaration by An Bord Pleanála.[10] These problems of an owner of property in this type of situation will be compounded if enforcement proceedings are taken and the court were to be persuaded to rely on the declaration issued by the planning authority or by An Bord Pleanála as determinative of the issue as to whether development had occurred. It is submitted that it would not be correct for the court to accord any weight to the declaration in such circumstances.

The question as to the jurisdiction of the court to construe planning permissions was considered by the Supreme Court in Grianan An Aileach Interpretative Centre Company Limited, plaintiff/respondent .v. Donegal County Council, defendant/appellant.[11] The site of the development was a disused church located near an ancient monument known as the Grianan An Aileach. Planning permission was granted for a development described as: