Stack v. Kerry County Council [2000] IEHC 192 (11th July, 2000)

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1. The Applicants in this application seek leave to apply for a judicial review pursuant to the provisions of the Local Government (Planning and Development) Act 1963 as amended by Section 19 (3) of the Local Government (Planning and Development) Act 1992. In order for the Applicants to obtain leave they must satisfy this Court that there are substantial grounds for contending the decision which is impugned in these proceeding is invalid or ought to be quashed. The Applicants in their statement grounding their application for judicial review seek an Order of Certiorari quashing the decision of the Respondents dated the 23rd of November 1999 (An Board Pleanála Reference No PLO8. 111411) refusing permission for a development comprising of the construction of a one and a half storey high house with sceptic tank and percolation area at Barrow, Artfort, Co Kerry.

2. The background to this matter is as follows. On the 15th of March 1994, Kerry County Council granted outline planning permission (reg. ref 59/94) for the erection of two dwelling houses on a site including the site the subject matter in these proceedings and an

adjoining site immediately to the west of it. This decision was not appealed. The lands in respect of which this outline planning permission was granted were located within an area which was designated in the Kerry County Development Plan of 1989 as an Area of Secondary Special Amenity, where it was policy to restrict development to protect the amenities and natural beauty of the area. The Kerry County Development Plan of 1996 repeated the same designation for the same area.

3. Kerry County Council under planning reg. ref no 46/496, granted planning permission for a development comprising the upgrading of the existing accommodation road leading to the site which is the subject matter of these proceedings and for the provision of adequate site distance of the junction where it meets Barrow road. On the 7th of May 1999, Kerry County Council granted planning permission to the Applicants herein for a development comprising the erection of a one and a half dwelling house with sceptic tank and percolation area on the subject site at Barrow, Artfort, Co Kerry in accordance with the plans particularly submitted.

4. By letter dated the 21st of May 1999, Michael McKiernan, the second named Notice Party, submitted an appeal to An Bord Pleanála against the decision of Kerry County Council made on the 7th of May 1999 to grant permission for the said development.

“I Michael McKiernan, of the above address, apply to An Bord Pleanála to appeal against the decision made on the 7th of May 1999, by Kerry County Council, to grant Tom and Ann Stack for the erection of a dwelling house at Barrow, Artfort, Tralee, Co Kerry, on the grounds that the proposed dwelling would be located on land very close to the sea which is in an area which has being designated as an area of Secondary Special Amenity and would injure

6. By a Letter dated the 22nd day of June 1999, addressed to An Board Pleanála, O’Sullivan Cadogan Solicitors on behalf of the Applicants, made a replying submission to An Board Pleanála in relation to the letter of appeal submitted by Michael McKiernan.

7. In a report dated the 18th of November 1999, the Senior Planning Inspector for the Respondent, Michael Walsh, recommended that planning permission be granted. His reason for the said recommendation was in the following terms:-

“The site of the proposed development, is located at a relatively low level on the Southern side of the Barrow Peninsula. While this peninsula is included in a area designated in the current Kerry County Development Plan as an area of Secondary Special Amenity, it is considered that the proposed development subject to compliance with the conditions set out in the second schedule hereto, would not be an obtrusive development in the landscape in this area, would not seriously injure the amenities of the area and would not therefore be inconsistent with the policies associated with that designation.”

9. Finally on the 23rd of November 1999, the Respondent made a decision to refuse planning permission in respect of the aforesaid development for the reason contained in the schedule thereto which reads as follows:-

“The proposed development would be located on a prominent site between the public road and the sea within an area which has been designated in the current Kerry County Development Plan as an area of Secondary Special Amenity, where it is policy to restrict development to protect the amenities and natural beauty of the area. This policy is considered reasonable. It is considered that the proposed development when taken in conjunction with the existing and permitted development in the area, would seriously injure the scenic amenities and natural beauty of this area and would, therefore, be contrary to the proper planning and development of the area.”

10. In approaching the task of assessing whether or not the grounds which are set out in the Applicant’s statement of grounds are for the purpose of the Local Government (Planning and Development) Act 1963 as amended by Section 19(3) of the Local Government (Planning and Development) Act 1992, “Substantial grounds” for contending that the aforesaid decision of the Respondents is invalid and ought to be quashed, I would respectfully adopt and follow the judgment of Carroll J in the case of McNamara -v - An Bord Pleanála [1995] 2 ILRM

11. “What I have to consider is whether any of the grounds advanced by the Applicant are substantial grounds for contending that the Boards decision was invalid. In order for a ground to be substantial, it must reasonable, it must arguable, it must weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result will be. I believe I should go no further than to satisfy myself that the grounds are “substantial”. A ground that does not stand any chance of being sustained (for e.g., where the point has already being decided in other cases) could not be said to be substantial. I draw a distinction between grounds and the various arguments put forward in support of these grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the Applicant is confined in his arguments at the next stage to those which I believe may have some merit.”

“E(i) the Respondents in determining the appeal on foot of which the said decision dated the 23rd of November 1999 (PL.08.111411) was made took into account, matters other than those raised by the parties or by any person who had made submissions or observations to the board in relation to the said

appeal without giving notice in writing to the Applicants that they proposed to take into account the said matters. In particular, the Respondent took into account certain unspecified circumstances in relation to a site to the west of the subject site which was the subject of a refusal of permission (PL.08.108753) by the Respondent, without notifying the Applicants of the said circumstances which were taken into account. Accordingly the said decision was made in breach of the statutory obligation imposed on the Respondent by Section 13(2) of the Local Government (Planning and Development) Act, 1992, as a consequence whereof the said, decision was made ultra vires and is invalid and of no legal effect.

(ii) “Further or in the alternative the failure of the Respondents to notify the Applicants in respect of the matters referred to in the preceding sub paragraph and to afford them an opportunity to make submissions relating thereto amounted to a breach of the Principles of Natural Justice and Constitutional Justice such as to render the said decision invalid.

(iii) Further or in the alternative the said decision of the Respondent flew in the face of fundamental reason and common sense and was so totally unreasonable as to be invalid by reason of the fact that it was based on the conclusion of the Respondent as reflected in the Board Direction dated the 23rd of November 1999, signed by Louis Clohessy, Board member, that the circumstances in relation to the application/appeal on foot of which the subject decision was made was not was not significantly different from the circumstances relating to a decision of the Respondent bearing the An Bord

(b) the said Board member was not in a position to assess the degree of difference between the two cases the subject matter of the said decisions having regard, inter alia, to the fact that the said Board member did not carry out a visual inspection of the site of the subject matter of the earlier decision (PL.08.108753),.

(iv) Further and in the alternative the said decision was so totally unreasonable as to be invalid by reason of the fact that there was no evidence on the basis of which the said conclusion contained in the said decision of the Respondent dated the 23rd of November 1999 could have been reached.

(vi) Further or in the alternative, the said decision was made ultra vires by reason of the failure of the Respondent to furnish any or adequate reasons for its said decision as to why the recommendation of its Senior Inspector was rejected.

(vii) Further and in the alternative, the said decision flew in the face of fundamental reason and common sense by reason of the fact that there had being no material change in the background planning circumstances effecting the subject site since the grant of outline planning permission by order of Kerry County Council dated the 15th of March 1994 (Planning reg. ref 59/94)

(viii) Further and the alternative the said decision was made ultra vires in so far as if any material change of circumstance had occurred between the date of the grant of the said outline planning permission and the date of the said decision, challenged herein (which is denied) the Respondent failed to furnish any reason based on or make any reference to such change of circumstances.

(ix) Further and in the alternative, the said decision was invalid by reason of the failure of the Respondent to furnish an adequate note or record of its decision to permit the said decision to be reviewed in the light of the grounds of relief relied upon above.”

13. In regard to grounds E(i) it is the Applicants case that the Board, as disclosed from the Board direction dated the 23rd of November 1999, relied upon its refusal of planning permission in respect of the West site, a conclusion that there was no significant difference between the two applications and that this combination of material was relied upon by the Board as the basis of its refusal of the application the subject matter of these proceeding, and that in so relying on this material the board had an obligation under section 13 (2) of the Local Government (Planning and Development) Act 1992, to inform the Applicant of these matters, they being matters which had not been raised by Mr McKiernan,

or any other party and the Board should, pursuant to Section 13 (2) (B) have invited submissions or observations in relation to these matters from the Applicant to be made in writing within a period specified in a notice to that effect.

14. Against this contention it was submitted by Miss Butler for the Respondents that what the Board did in this instance was merely to have regard to a prior decision of its own which it was entitled to do, and that this was not a matter of the kind to which Section 13(2) of the Local Government (Planning and Development) Act of 1992 applied. Miss Butler further submitted that the decision of the Board was confined squarely within the confines of the appeal made by Mr McKiernan and the mere fact that there was a coincidence in the reasons for the refusals in both cases did not mean or imply a reliance by the Respondent on extraneous material, save that the Board did have regard to and was entitled and was indeed obliged to have regard to its own prior decisions, and in this case, it had regard to its refusal to grant permission on the 12th of May, 1999 in respect of the west site.

15. Miss Butler stressed the common features of the two sites and the applications relating to them. The two sites were the subject of a single application for outline planning permission and a grant of outline planning permission in 1994, which expired in March of 1999. The sites were adjoining each other and were in the same area of Secondary Special Amenity and in all respects identical in so far as their location was concerned and the type of house in respect of which permission was sought was similar in both cases, a fact she contended was evidenced to the Board in the plans which were submitted to the Board with the appeal.

16. It is not necessary for me to resolve these clearly conflicting submissions for the purposes of deciding whether or not this ground as put forward by the Applicant is a “substantial” one. It would seem to me however that the Board, as evidenced by the Board Direction of the 23rd of November 1999 had regard not only to its prior decision in relation

to the west site but also and perhaps more importantly its direction indicates it reached a conclusion that there was no difference of significance between the Applicants application for planning permission and the proposal in respect of which they had refused permission for the west site. Clearly this was a matter which had not been raised by Mr McKiernan in his appeal as a ground of appeal and was not therefore addressed by the Applicant in his submission to the Respondent on that appeal. In this regard the Applicant drew attention to Section 4 of the Local Government (Planning and Development) Act 1992 which sets out the manner in which an appeal to the Respondent had to be made and in particular Sub Section 1 of that Section. Had the Applicant being informed pursuant to Section 13 Subsection 2 of the fact that the Board purposed to regard his application as no different to that of the West site, that would have given him an opportunity to make such case as he was able to in regard to any differences that might exist between the two. He was however, not given that opportunity. In the light of this I would hold that this ground is a substantial one.

17. The ground set out at E(ii) is similar in content to that at (i) save that in regard to the same complaint, the Applicant makes the case that the failure to inform him of the foregoing matters was a breach of natural justice and constitutional justice. I would similarly hold that this is a substantial ground.

18. Ground E (iii) - attacks the validity of the decision of the Respondents as being contrary to fundamental reason and common sense. I am not satisfied that this is a substantial ground. Apart from any other material, there was, in my view, before the Board material in the form of the assessment portion of the report of the Inspector together with the designation of the area as per the Kerry County Council Development Plan, and also the plans for the house itself, a combination of material which was, in my view, sufficient material to support the decision of the Board. In that regard, I am mindful of that passage in the Judgment of

“I am satisfied that in order for an Applicant for Judicial Review to satisfy the Court that the decision making Authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which could support its decision.”

20. I am satisfied that there was before the Board, before it made its decision relevant material which could support its decision and hence in my view this ground as advanced is not a substantial ground for contending that the decision is invalid or should be quashed.

22. In ground number E(v) the Applicant contends that the decision was ultra vires by reason of the fact that no reasons or no adequate reasons were given. The Applicants case in this regard is that the reasons for the decision should be such as to give the Applicant some clue as to what was wrong with his proposed development, so that he could assess what kind of new proposal he could make for a development on this site. The Applicant complains that the decision makes no reference to the planning criteria set out in paragraph 8.2.2 of the Kerry County Development Plan, nor does the decision set out any deficiency in the proposed development, having regard to those criteria.

23. Thus, the decision as stated suffers from an ambiguity, in that it could be interpreted as meaning that the instant development proposal was defective, or that alternatively the decision meant that no development would be permitted on this site.

24. If the Board intended the latter meaning, the decision should have stated this expressly, and if the Board did not intend to rule out all development on this site, it should in its decision, state the reasons, why this particular proposed development was being refused, by reference to the content of the proposal, in the light of the criteria set out at par. 8.2.2 of the Development Plan and any other relevant planning considerations. In this regard the Applicant relied upon the case of Save Britain’s Heritage -v- The Secretary of State for the Environment and Others [1991] 2 All ER at p. 10. This is a decision of the House of Lords and in particular the Applicants refers to the following passage from the speech of Lord Bridge of Harwich where he says the following at page 24 of the report-

“The single and indivisible question in my opinion which the Court must ask itself when ever a planning decision is challenged on the ground of the failure to give reasons is whether the interests of the applicant have being substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I could except that normally such prejudice should arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted when the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken

within the powers of the act. Secondly, a developer whose application for permission is refused maybe substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the Local Planning Authority or some unofficial body like the Respondents may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decisions is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.”

25. Against this Miss Butler has submitted that it was neither necessary or indeed desirable that the Respondents should by its decision to refuse set down markers for further future applications because it might be then held estopped from refusing a future application. She further submitted, relying upon the Judgement of Laffoy J in the case of Village Residents Associations Ltd and An Bord Pleanála and McDonald Restaurants and Kilkenny County Council judgment delivered on the 5th of May 2000, that all that was necessary for the Board to do in order to fulfil its statutory duty to give reasons for its decision was to so state its reasons over the entirety of the document containing its refusal so that an intelligent person with knowledge of the issues raised in the Appeal would understand why the Board came to the decision to refuse. She submitted that the reason expressly stated in the decision for its refusal, reflects in exact terms the grounds which were advanced by Mr McKiernan in his appeal so that any person could readily see what was decided by the Board and why.

26. I am mindful of the state of the Authorities on the question of the content of reasons which must be given by the Respondents or a Local Authority in their decisions. Laffoy J. in the above mentioned McDonalds case said the following at page 18 of the judgment

“On the authorities and determining whether the Board properly fulfilled its statutory duty to give reasons for its decision, the Court must have regard to the entirety of the document dated the 30th of April 1999 and it must consider whether an intelligent person with knowledge of the broad issues raised in McDonalds appeal would understand why the Board came to the decision to grant permission subject to conditions”

“Firstly I am satisfied that there is no substance in the contention made on behalf of the Plaintiff that the Board should be prohibited from relying on a combination of the reason for the decision and the reasons given for the conditions together with the terms of the conditions. There is nothing in the statute which could justify such a rigid approach and it would be contrary to common sense and to fairness. What must be looked at is what an intelligent person who had taken part in the appeal or had being appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons”.

28. On the basis of the authorities in this jurisdiction, there could be said to be much merit in Miss Butler submission, nevertheless, there is undoubtedly authority for the proposition advanced in this ground in the neighbouring jurisdiction as in the Save Britain’s Heritage case, an authority which could be very persuasive.

29. It could be argued that the authorities in this jurisdiction deal more with the form of decisions, prescribing merely that decisions, taken in their entirety, must be capable of demonstration to an intelligent person who was aware of the issues raised what the reasons for the decision were. Neither the O’Keeffe case nor the McDonald case was concerned with the essential content of the reasons for a decision. This topic was addressed in the Save Britain’s Heritage case, and the rationale of the decision in this case, does not conflict with the judgments of the Supreme Court in the O’Keeffe case, or with the judgment of Laffoy J in the McDonald case. It could be said that what has happened in the Save Britain’s Heritage case is a development of the law in this area, that has not yet happened in this jurisdiction.

31. Ground no E(vi) is not a substantial one in my opinion, as it is well settled that the Board, need not accept a recommendation of an inspector and has no obligation to explain a rejection of an inspector’s recommendation. All that is required of the board is that there be some material to support its decision and that it gives reasons for its decision.

32. In regard to grounds numbers E(vii) and (viii) the Applicant had not advanced any case in this application which would persuade me that these are substantial grounds, in particular having regard to the admitted fact that the outline planning permission expired in March of 1999 and that there after it ceased to have any legal force and effect.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Stack v. Kerry County Council [2000] IEHC 192 (11th July, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/192.html Cite as: [2000] IEHC 192

High Court of Ireland Decisions

Stack v. Kerry County Council [2000] IEHC 192 (11th July, 2000)