Eircell Limited (applicant) v County Council of the County of Leitrim (respondent).

Local Government - Planning and development - Decision to revoke planning permission - Respondent obliged to considering matters relevant to planning and development - Change in circumstances since grant of permission a prerequisite to a decision to revoke - Change in circumstances relied on being the discovery of local opposition to proposed development - Whether revocation valid - Whether onus on applicant to show that respondent had not considered new circumstances - Local Government (Planning and Development) Act 1963, section 30.

Judicial Review - Application for certiorari - Existence of appeal from impugned decision - Whether court should exercise its discretion to grant relief.

Natural Justice - Fair procedures - Act not providing for prior notification of decision to consider revoking planning permission - Act not providing for opportunity for developer to make representations - Whether fair procedures had been observed - Local Government (Planning and Development) Act 1963, section 30.

The High Court (before Mr Justice O'Donovan); judgment delivered 29 October 1999.

There are two prerequisites to the revocation of a grant of planning permission by a planning authority pursuant to section 30 of the Local Government (Planning and Development) Act 1963. First, in deciding whether it was expedient to revoke the permission, the authority is restricted to considering the proper planning and development of the area concerned. Secondly, the permission cannot be revoked unless there has been a change in circumstances relating to the proper planning and development of the area concerned and that change in circumstances has occurred since the granting of the permission. Furthermore, the authority, in making this decision, is obliged to act judicially and has a duty to ensure that fair procedures are observed, notwithstanding that this had not been specifically provided for in the Act.

Notwithstanding the existence of an alternative remedy, namely an appeal from the authority's decision, the applicant was entitled to relief by way of judicial review as it was in the interest of justice that the public at large should know that the planning authority could not ride roughshod over principles of constitutional justice and fair procedures.

Mr Justice O'Donovan so held in granting orders declaring the decision to revoke the permission invalid and in quashing the said decision.

Paul Gallagher SC and Eamon Galligan BL for the applicant; Edward Walsh SC and Frank Martin BL for the respondent.

Mr Justice O'Donovan said that by order of the High Court dated 26 March 1999, the applicant had been granted leave to apply for judicial review for declarations that the order made by the respondent on 1 March 1999, whereby it was decided to revoke a previous decision granting planning permission to the applicant, and the notice of revocation dated 2 March 1999 which had been served on the applicant were ultra vires and invalid, and for orders of certiorari quashing the said order and notice.

The facts were that on 23 June 1998 the respondent had granted to the applicant planning permission for a development comprising the erection of a 32-metre telecommunications support structure and antennae, associated equipment, shelter and associated development works at Tully, Ballyinamore, Co Leitrim. This decision was made by the county manager. At a special meeting of the elected members of the respondent on 1 March 1999, it was decided to revoke that grant, and on 2 March 1999 a notice was served on the applicant pursuant to section 30 of the Local Government (Planning and Development) Act 1963 purporting to revoke the permission. The reason given for the revocation was that there had been a change of circumstance in that the considerable fear, apprehension and opposition within the local community as to the health implications, the impact on property values and tourism and the visual implications of the proposed development had been made known to the elected representatives only since the permission had been granted. Before making this decision, the elected members had been advised that the planning officer of the respondent had certified that no change in circumstances relating to the proper planning and development of the area concerned had occurred since the granting of the permission.

The grounds on which the applicant sought relief were: (1) The requirements of constitutional justice and basic fair procedures had not been observed by the elected members of the respondent in that no prior notification of the intention to consider revocation of the grant had been given to the applicant, nor was the applicant afforded the opportunity to make submission or representations as to whether or not the permission should be revoked. (2) No change in circumstances, as required by section 30(2A) of the Local Government (Planning and Development) Act 1963 had occurred between the date on which permission had been granted and the date on which it had been revoked. (3) The grounds on which the elected members had sought to base the revocation were flawed in that, prior to arriving at their decision the elected members had not established the circumstances which obtained on the date of the grant nor did they conduct any investigation into what change of circumstances had taken place in the interim. A fear of possible consequences of granting a planning permission was not, of itself, a proper consideration when deciding whether or not to grant a permission. It was necessary to establish facts to justify such a fear.

The respondent argued that no prior notification of the consideration of a revocation of planning permission was required by section 30(2A), but having been served with notice of the revocation, the applicant had a right of appeal. It was also submitted that the onus of proving that there had been no change in circumstances which entitled the respondent to revoke the permission rested with the applicant, and that since the planning authority was best qualified to deal with planning matters, the applicant should have appealed rather than seek discretionary relief from a court.

The applicant submitted that the existence of an appeal did not preclude it from seeking judicial review, and it relied on State (Abenglen Properties Limited) v Dublin Corporation [1984] IR 381 where the then Chief Justice, Mr Justice O'Higgins, stated that the existence of a right of appeal or an alternative remedy ought not to prevent a court from acting. It was a question of justice and if the decision impugned was made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such should be immaterial. The applicant also relied on the judgment of Mr Justice Kelly in Bane and Others v Garda Representative Association and Others [1997] 2 IR 449 where he said that "in a case where a number of remedies are open to applicants to vindicate their rights, they are entitled to choose the one which best suits them."

Mr Justice O'Donovan cited section 30 and said that it was clear from its provisions that there were two necessary prerequisites for the revocation of a grant of planning permission by a planning authority. First, in deciding whether it was expedient to revoke the permission, the authority was restricted to considering the proper planning and development of the area concerned, and secondly, the permission should not be revoked unless there had been a change in the circumstances relating to the proper planning and development of the area concerned and such change of circumstances had occurred since the granting of the permission.

The respondent had accepted that it had made no inquiry into the circumstances obtaining at the time of the grant, and that apart from learning of local opposition, it had not investigated the basis of those concerns or weighed them against considerations of proper planning and development of the area. However, the respondent had argued that the onus of proof was on the applicant to establish that the matters considered by the elected members differed from those considered by the county manager in making the grant, and to establish that there had been no change in circumstances between the making of the grant and the date of revocation.

The respondent had relied on the judgment of the Supreme Court in O'Keeffe v An Bord Pleanala [19 93] 1 IR 39 where it had been held that an applicant, when seeking to quash a decision of the board on the basis of irrationality, must satisfy the court that the board had no relevant material before it which would support its decision, and the onus of establishing that no relevant material existed rested with the applicant. The Supreme Court in so ruling had been influenced by its previous decision in P. & F. Sharpe Limited and Grove Developments Limited v Dublin City and County Manager [1989] IR 701. Mr Justice O'Donovan said that it was significant that in both of those cases the court had been required to consider whether the decision of the planning authority had been unreasonable, i.e. whether the decision had been fundamentally at variance with reason and common sense. The applicant had contended that the reasonableness of the respondent's decision was not in question. The question was whether the elected members had armed themselves with sufficient information to enable them to come to any conclusion, reasonable or otherwise. The applicant had submitted that, in any event, subsection (2A) clearly placed the onus on the planning authority to establish that there had been a change of circumstances.

Mr Justice O'Donovan said that in his view, the elected members had not sufficiently informed themselves of the circumstances which obtained when the permission was granted and did not sufficiently investigate the alleged fears and opposition of the local community so as to enable them to determine whether or not a change in circumstances had occurred or to enable them to consider proper planning and development in the area. While they were not bound by the opinion of their planning officer that no change in circumstances had occurred, the mere fact that he had expressed that opinion was all the more reason why they should make those inquiries and investigations. Mr Justice O'Donovan said that local opposition was not of itself a proper planning consideration or a change of circumstances within the meaning of section 30, although the factors provoking it might be relevant or constitute a change of circumstances. The elected members, however, were not sufficiently informed with regard to those factors to pass any judgment thereon.

Mr Justice O'Donovan said that the cases of O'Keeffe v An Bord Pleanal a and P. & F. Sharpe Limited v Dublin City and County Manager could be distinguished from the instant case because they were concerned with allegations of unreasonableness and irrationality. In this case, the grounds of challenge were that the elected members of the respondent had not sufficiently informed themselves of all relevant matters. Given this finding and the given the specific provisions of section 30, Mr Justice O'Donovan said that he was satisfied that the respondent's decision was invalid.

In addition, Mr Justice O'Donovan said that he was persuaded by the authority of the Supreme Court decisions in P. & F. Sharpe & Co Limited v Dublin City and County Manager, and also in State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36, and East Donegal Co-operative Live- stock Mart Limited v Attorney General [1970] IR 317 that in deciding whether or not to revoke a planning permission, the respondent was obliged to act judicially. In the context of this case, it was a fundamental requirement of justice that the applicant should have been given prior notification of the intention of the elected members to consider the revocation of the permission and to be afforded the opportunity to make submissions or representations to the respondent. The absence of any provision for such prior notification in section 30 did not absolve the respondent from this obligation. It was clear from State (Irish Pharmaceutical Union) v Employment Appeals Tribunal that where a body was making a decision arising from a statutory power and where that body was required to act judicially, then in the absence of a procedure laid down in the statute from which the power derives, the body making that decision must supplement that lacuna in such a fashion as to ensure compliance with constitutional justice. The decision of the respondent was therefore also invalid on the ground that the respondent had failed to adopt a procedure whereby compliance with constitutional justice was ensured.

Mr Justice O'Donovan said that for the sake of completeness, he accepted that he had a discretion to refuse the relief sought by the applicant on the grounds that there was an alternative remedy open to it which had not been prosecuted. Mr Justice O'Donovan said that he was in no doubt but that he was entitled to exercise that discretion in favour of the applicant, and furthermore, that it was in the interest of justice that he should do so, if for no other reason than that the public at large are entitled to know that the planning authority cannot ride roughshod over principles of constitutional justice and fair procedures. If the applicant had pursued an appeal, this would not have come into the public domain. Mr Justice O'Donovan said that he did not accept that Hughes v An Bord Pleanala, Monaghan County Council and Castleblayney UDC (unreported, Mr Justice Geoghegan, 30 July 1999) was authority for the proposition that the courts should always be slow to intervene in planning matters. While the courts accepted that question of planning were within the jurisdiction of the planning authorities who were expected to have special skill and experience in those matters, there was no obligation on the court to be slow to intervene where that intervention did not involve any adjudication on the merits of the decision involved. In this case, Mr Justice O'Donovan said that he was condemning the failure of the planning authority to sufficiently inform themselves with regard to relevant matters before arriving at that decision and their failure to observe principles of constitutional justice and fair procedures in the course of their deliberations. He therefore granted the relief sought.

Solicitors: Arthur Cox (Dublin) for the applicant; F. Gerard M. Gannon (Castlerea) for the respondent.