Mr Justice Kelly said that this view could not be gainsaid. Mr Justice Kelly referred to the applicant's submission that the section was not broad enough to encompass the two orders at issue and he acknowledged that, if this was correct, the application for leave would fall to be dealt with under Order 84, which would mean that the two month statutory time limit would not apply and the application could be made ex parte.

Mr Justice Kelly considered that while a "decision" of the planning authority was being impugned, the issue was whether or not it was a "decision" given on "an application for a permission or approval under Part IV of the Act". Mr Justice Kelly noted that applicant's contentions that: the orders at issue merely signified Dublin Corporation's "agreement" to the developer's submission in accordance with conditions attached to the planning permission; the planning permission was granted by the Board and therefore Dublin Corporation's decision could not be seen as one granting "permission"; and Dublin Corporation's agreement did not constitute an "approval" under Part IV of the Act.

Mr Justice Kelly considered that it was manifest that, in formulating the conditions attached to the permission, the board distinguished between the terminology used in condition number 2 (requiring "approval") and that relating to the remaining conditions (requiring "agreement"). Mr Justice Kelly noted that "approval" was not defined in the Act and that the only definition was in the Local Government (Planning and Development) Regulations, 1994, which defined it as meaning an approval consequent on an outline permission or an approval which is required to be obtained under a condition subject to which a permission or an approval is granted under the Acts.

Mr Justice Kelly noted the applicant's submission that, as regards condition 2, the statutory procedures were complied with in relation to applying for the approval and the approval obtained was registered in the planning register. Mr Justice Kelly noted that this did not occur in respect of the "agreements" in relation to the orders at issue and this was borne out by paragraph 18 of the affidavit of David Soden, which was not contraverted, and which outlined that where a condition attached to a planning permission refers to matters in respect of which an approval is required, an application in compliance with the Regulations, and on notice to the public, must be made to Dublin Corporation whereas, where a condition merely refers to matters "to be agreed", the planning authority was entitled to agree matters without reference to the Regulations unless the matters being agreed varied the development permitted to the extent that it would be necessary to make a new planning application.

Mr Justice Kelly noted the reference that was also made to the Local Government (Planning and Development) Act 1976, which established An Bord Pleanala and transferred to it the powers formerly exercised by the relevant Minister, and section 14(4) thereof which provides, inter alia, that, where a condition, attached to a permission or approval, provides that a matter is to be agreed between the planning authority and the person to whom the permission or approval was granted, and that in default of agreement the matter is to be determined by the minister, the condition shall be construed as providing that in default of agreement the matter is to be determined by the board.

Mr Justice Kelly said that the applicant submitted that this was statutory recognition of a planning authority's jurisdiction to make an order indicating its agreement to a developer's proposal the subject of a condition attached to a planning permission. It was further submitted that section 19(3) of the 1992 Act was not all embracing in respect of any decision of a planning authority concerning an application for a permission or approval, or a decision of the board on any appeal or reference, and that the orders in issue were not within the scope of that provision. Mr Justice Kelly noted that the applicant further relied on section 14(9) of the 1976 Act and he said that it was clear that the board was given jurisdiction not merely to a make a decision on any appeal or any reference but also a jurisdiction to make a "determination" in certain circumstances. Mr. Justice Kelly said that, while the term "determination" was used in that context on a number of occasions in section 14(9) of the 1976 Act, it was not used in section 19(3) of the 1992 Act. Mr Justice Kelly said that if a "determination" of the board was to be challenged in court it did not attract section 19(3) of the 1992 Act.

Mr Justice Kelly further commented on the fact that some of the conditions requiring agreement provided that, in default of agreement, the matter might be submitted to the board for a "determination". Mr Justice Kelly said that, while such a determination was outside the scope of section 19(3) of the 1992 Act, it would be strange if the first instance decision of the planning authority was within it. Mr Justice Kelly acknowledged the applicant's reliance on Boyne Grove Fruit Farms Limited v J. Murphy (Developments) Limited and he noted the reference made thereto by O'Sullivan and Shepherd in Irish Planning Law and Practice. In this case, Miss Justice Laffoy held that a decision to agree the precise location of an entrance pursuant to a condition of permission was not a "decision" for the purposes of section 82 of the 1963 Act and that the Order 84 time limits would apply to proceedings to quash such a decision.

Mr Justice Kelly accepted that, in enacting section 19(3) of the 1992 Act, the legislature intended precisely what was identified by the then Chief Justice, Mr Justice Finlay, in KSK Enterprises Limited v An Bord Pleanala. Mr Justice Kelly said that the court could not read more into section 19(3) than it actually provided and he held that it was not sufficiently extensive to embrace the orders at issue because they were not decisions of a planning authority on an application for a permission or approval under Part IV of the Act. Mr Justice Kelly also commented on the wording of those conditions which required agreement and the procedure followed in relation to those conditions as compared with what happened when "approval" was sought pursuant to condition number 2. On this basis, Mr Justice Kelly held that the orders at issue did not concern a decision of a planning authority on an application for a permission or approval under Part IV of the 1992 Act.

Finally, Mr Justice Kelly considered that it was clear that a "determination" made by the board under section 14(9)(c) or (e) of the 1976 Act was not covered by section 19(3) of the 1992 Act. Mr Justice Kelly considered that section 19(3) of the 1992 Act did not apply to the appellate jurisdiction that might have been exercised by the board in the event that agreement was not reached between the developer and Dublin Corporation. Mr Justice Kelly said that it would be strange if section 19(3) applied to the planning authority's first instance decision but not to the determination of any subsequent appeal. On this basis, Mr Justice Kelly agreed with Miss Justice Laffoy in Boyne Grove Fruit Farms that the orders at issue were not a "decision" in terms of section 19(3). Mr Justice Kelly was therefore satisfied that Mr Justice Lavan was correct in permitting the application for leave to apply for judicial review to be made pursuant to the normal judicial review procedure rather than that prescribed under the 1992 Act.

Solicitors: David Soden (Dublin) for the applicant; Timothy J. C. O'Keeffe & Co (Dublin) for the respondents; Sheehan & Co. (Dublin) for the notice party.