Judicial Review - Planning - Application for leave - Whether substantial grounds for contending decision invalid or ought to be quashed -Whether issues raised were moot - Whether in breach of fair procedures - Local Government (Planning and Development) Acts 1963 to 1992 - Planning and Development Act 2000 - Planning and Development (Licensing of Outdoor Events) Regulations 2001.
The High Court (Mr Justice Finnegan); judgment delivered July 18, 2001.
Decisions of An Bord Pleanβla on references were matters of record and were available for inspection. If a party to a reference wished, it could draw the attention of An Bord Pleanβla to any previous decision of An Bord Pleanβla which it considered relevant, whether that decision was favourable to its application or otherwise, and in the latter case, could seek to distinguish same.
Where An Bord Pleanβla had made available to each party the submissions of the other for comment, this fully satisfied the requirements of natural justice.
The High Court so held in granting the applicants leave to apply for judicial review of a decision of An Bord Pleanβla on limited grounds only.
Rory Brady SC and Garrett Simons BL for the applicants; Nuala Butler BL for An Bord Pleanβla; Michael Cush SC and David McParland BL for the notice party.
Mr Justice Finnegan said that the Local Government (Planning and Development) Act 1963, section 5, as amended by section 14 of the Local Government (Planning and Development) Act 1972, provided that, if any question arose as to what was or was not development or exempted development, that question shall be referred to and be decided by An Bord Pleanβla. Where a decision was given under that section, an appeal to the High Court from that decision may be taken at any time within the period of three months after the giving of the decision or such longer period as the court may in any particular case allow. Section 82 of the 1963 Act, as amended by section 19 of the Local Government (Planning and Development) Act 1992, provided that a person shall not question the validity of a decision of An Bord Pleanβla on any reference otherwise than by way of an application for judicial review, the application to be on notice to the planning authority and any other party to the reference. Leave shall not be granted unless the court was satisfied that there were substantial grounds for contending that the decision was invalid or ought to be quashed.
Mr Justice Finnegan said that second and third applicants were the promoters of a two-day concert intended to be held at the first applicant's lands. In 1999, the promoters entered into negotiations with the planning authority in respect of an concert event proposed for August 2000. The planning authority sent a letter to the effect that the proposed event did not require planning permission, having regard to its location within an existing entertainment complex and the fact that it was ongoing prior to 1964 and was a once off event.
In May 2000 the notice party made a reference to An Bord Pleanβla (hereinafter "the respondent") pursuant to section 5 of the 1963 Act and sought a declaration as to whether the holding of the forthcoming concert constituted development or exempted development. Mr Justice Finnegan said that a decision was not made by the respondent until after the concert had taken place. He said that he was satisfied that the matter which was before the respondent was a "particular case" namely the event held over the two days in August 2000 and was not a decision on the event scheduled for the following August or for future years. The decision of the respondent was that the event represented a material change of user, that it was development and did not constitute exempted development.
Mr Justice Finnegan said that he had to determine firstly whether or not the issues raised in the proceedings were moot having regard to the provisions of the Planning and Development Act 2000, part XVI, and Regulation 19 of the Planning and Development (Licensing of Outdoor Events) Regulations 2001. The effect of those was that the applicants' position in relation to the 2001 event would differ if on the one hand the holding of same required planning permission or on the other hand the same was not a material change of use and so not development or was exempted development. If planning permission was not required for the event then the promoters would not require a licence for the event scheduled for August 2001. Mr Justice Finnegan said that he was satisfied that the decision of the respondent could not determine the status of the August 2001 event as in its terms it related as required by section 5 to a particular case, namely the August 2000 event.
However, he said that within the inspector's report upon which the respondent based its decision, there were a number of findings of fact with which the applicant did not agree. He said that it was clear from the papers exhibited that the respondent on such a reference would have regard to its previous decisions relevant to the case before it and accordingly the existence of this decision was of concern to the applicant as it might affect future references in relation to future events which it was proposed should take place at Fairyhouse Racecourse. For this reason, the applicants argued that the issues raised on the application were not moot. Further, section 5 of the 1963 Act had been replaced by section 5 of the 2000 Act which made it clear that any person may institute a reference. However, he said that the applicants had availed of the right of appeal under section 5(2) of the 1963 Act, and if they succeeded in having the respondent's decision quashed on any of the grounds upon which they relied, then it would not be necessary for them to pursue the appeal. He said that the decision of the court on the issues raised was not merely of academic interest but was of practical benefit to the parties to the appeal. In these circumstances he said that he was satisfied that while the issues sought to be raised had to an extent been overtaken by events they were not merely academic but of practical consequence and accordingly not moot.
Mr Justice Finnegan examined the grounds of the applicant, to determine in respect of each whether the same were substantial. The first ground concerned whether or not the 1963 Act permitted of a reference by a person other than the developer or owner of the lands in question. In this regard, he said that the dicta of Mr Justice Costello in Patterson v Murphy ILRM 85 supported the applicants' contention that they had substantial grounds to argue the construction of section 5 for which they contended. Accordingly, he said he proposed granting the applicants leave to apply for the relief claimed in the Statement to Ground Application for Judicial Review at D (i)(ii) and (iii) upon the grounds set out at E(i) 1 and 2.
The second ground was to the effect that the respondent had no jurisdiction to decide on a reference where the event at the date of the decision had already taken place. Mr Justice Finnegan said that there was nothing in the section to support that contention and that it was not necessary for him to decide whether the position would be the same if the reference had been made after the event had taken place. Accordingly, he said he was not satisfied that the applicant has shown that this ground was substantial and he refused leave.
The third ground was that the respondent failed to provide any or any adequate statement of reasons for its decision. Mr Justice Finnegan said that the information available to the applicants was sufficient to enable them to formulate their claim for judicial review in considerable detail. He said that, notwithstanding that the reasons given were terse, the applicants had not in any way been prejudiced thereby.
He stated that this submission, if correct, would result in an obligation on the respondent in every case to give what would amount to a reasoned judgment. Accordingly, Mr Justice Finnegan said that he was not satisfied that this omission alone would justify him in holding that this ground was substantial and he refused leave on this ground.
The fourth ground was that the decision of the respondent was arbitrary, irrational and unreasonable in all the circumstances. Mr Justice Finnegan said that having regard to the view he had taken in relation to the inspector's report, he was satisfied that there were ample grounds to justify the decision.
He stated that the applicants had not satisfied him that there were substantial grounds for contending that the decision should be quashed on the basis of the decision in State (Keegan) v Stardust Victims Compensation Tribunal IR 642 and he refused leave on this ground.
The fifth ground was that the respondent took into account irrelevant considerations and or matters in respect of which there was no or no sufficient evidence before it. Mr Justice Finnegan said the approach to be adopted in relation to this ground was that set out in O'Keeffe v An Bord Pleanβla 1 IR 39. Mr Justice Finnegan said he was satisfied from a perusal of the documents exhibited on this application that there was before the respondent evidence which would justify it in reaching the decision which it in fact reached. Accordingly, he refused leave on this ground.
The sixth ground was that the respondent acted in breach of fair procedures by taking into account material in respect of which the applicants were not afforded an opportunity to make submissions or to respond. Mr Justice Finnegan said that the decisions of the respondent on references were matters of record and were available for inspection. If a party to a reference wished it may draw the respondent's attention to any previous decision which it considered relevant whether that decision was favourable to his application or otherwise and in the latter case could seek to distinguish same.
Mr Justice Finnegan said that the procedure adopted by the respondent here whereby it made available to each party the submissions of the other for comment fully satisfied the requirements of natural justice and accordingly he refused leave on this ground. Mr Justice Finnegan said that the applicants complained of a number of other matters which the inspector took into account in his report and suggested that they should have been afforded an opportunity to comment on these. In respect of each of these he said he was not satisfied that substantial grounds had been shown. In this regard, he said that he considered the existence of a full right of appeal to the High Court as relevant. Mr Justice Finnegan said he regarded the procedures adopted by the respondent in the case as fair and fully compliant with the requirements of natural justice.
In the circumstances, Mr Justice Finnegan granted leave to the applicant to seek the reliefs set out in the statement to ground application for judicial review at D (i) (ii) and (iii), upon the grounds set out therein at E(i) 1 and 2 only.
Solicitors: Arthur Cox (Dublin) for the applicants; Barry Doyle & Co (Dublin) for An Bord Pleanβla; Brooks & Lee (Dublin) for the notice party.
Gillian Reid
Barrister
