HC 276/04
THE HIGH COURT
JUDICIAL REVIEW
[2002 No. 65 J.R.]
BETWEEN
SANDYFORD ENVIRONMENTAL PLANNING
AND ROAD SAFETY GROUP LIMITED
APPLICANT
AND
DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL
RESPONDENT
Draft JUDGMENT of Mr. Justice William M. McKechnie delivered on the 30th day of June, 2004
- On 11th day of February, 2002, Ó Caoimh J. granted to the applicant leave to apply by way of an application for judicial review for the reliefs sought at D.(1),(3) and (4) of the statement grounding the application and did so on the grounds specified at para E thereof; this save for the claim that section 13(4)(a) of the Planning and Development Act, 2000, was unconstitutional, which claim was not allowed. The order sought at para. D (1) and (3) respectively are as follows:-
(1) An order of certiorari quashing the decision of the respondent to adopt variation 2 B/4 to the Dun Laoghaire Rathdown County Development Plan 1998 passed by resolution of this respondent on 13th day of August, 2001 and
(3) Alternatively a declaration that the operation by the County Council of the provisions of s. 13(4)(a) of the Planning and Development Act, 2000, in respect of proposed variation to 2 B/4 of the Dun Laoghaire Rathdown County Development Plan, 1998, was unconstitutional and constituted a breach of the requirements of natural justice and fair procedures.
The third relief sought, namely that pleaded at para. D(4) of the statement, was the grant of an injunction to prohibit and restrain the respondent from issuing any planning permission under or by virtue of this said variation. In the circumstances which have occurred this relief is not now relevant.
The grounds upon which this Court permitted the institution of the within judicial proceedings are set forth in a later part of this judgment.
- Since the provisions of s. 13 of the Planning and Development Act, 2000, are central to this case it is opportune, I believe, to recite in full at the beginning of this judgment the relevant parts of that section. These are as follows:-
"13-(1) A planning authority may at any time, for stated reasons, decide to make a variation of a development plan which for the time being is in force.
(2) Where a planning authority proposes to make a variation in a development plan, it shall -
(a) send notice and copies of the proposed variation of the development plan to the Minister, the Board and where appropriate, to any adjoining planning authority, the prescribed authorities, any town commissioners and city and county development boards within the area of the development plan,
(b) publish notice of the proposed variation of the development plan in one or more newspapers circulating in that area.
(3) A notice on a sub-s. 2(2) shall state that:-
(a) the reason or reasons for the proposed variation,
(b) …
(c) …
(4) (a) Not later than 8 weeks after giving notice under subsection
(2)(b), the manager of a planning authority shall prepare a report on any submissions or observations received under that subsection and shall submit the report to the members of the authority for their consideration.
(b) A report under paragraph (a) shall
(i) List the persons or bodies who made submissions or observations under the section,
(ii) Summarise the issues raised by the persons or bodies in the submissions,
(iii) Give the response of the manager to the issues raised, taking account of the proper planning and sustainable development of the area, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government.
(5) (a) The members of a planning authority shall consider the proposed variation and the report of the manager under subsection (4)(b). (b) The … consideration of the variation and the manager's report under paragraph (a) shall be completed not later than 6 weeks after the submission of the manager's report to the members of the authority.
(6) (a) The members of a planning authority, having considered a proposed variation and manager's report, may, by resolution as they consider appropriate, make the variation with or without modifications or they may refuse to make it.
(b) …
(7) In making a variation under this section, the members of the authority shall be restricted to considering the proper planning and sustainable development of the area to which the development plan relates, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government.
(8) …
(9) When considering a variation of a development plan in accordance with this section, a planning authority may invite such persons as it considers appropriate to make oral submissions regarding the variation.
(10) …
(11) The variation made to a development plan shall have effect from the day that the variation is made."
- The principal affidavit relied upon on behalf of the applicant was one sworn by Mr. Dudley Dolan on 8th February, 2002. A Mr. Michael O'Neill, who is a consultant in town planning, also offered affidavit evidence. From these documents and from the statement grounding the application for judicial review, the following can be extracted as representing, in substance, the claim made on behalf of this applicant.
Sandyford Environmental Planning and Road Safety Group Limited is a company with limited liability formed for the purposes of pursuing environmental, planning and road safety objectives in the area of Sandyford, Co. Dublin. It was incorporated on 8th day of February, 2002, the same date which appears on the statement grounding this application and on which Mr. Dolan swore his said affidavit. Within this area of Sandyford are certain lands situated at Lambs Cross/Blackglen Road. These lands comprise approximately five hectares and lie north of Blackglen Road and immediately south of, and adjacent to, a designated conservation area of approximately 8 hectares, known as Fitzsimons Wood, which site is a proposed natural heritage area. This wood, it is claimed, is an area of considerable ecological interest and, in that regard, is noteworthy in many respects. In recent years there has been some significant development in the general locality including the construction of residential houses up to what is virtually the face of the northern boundary of this wood. In addition, planning permission has been granted for a sports complex to the east and of course the M50 motorway lies further to the north. Moreover, in the extended general area of Sandyford, Leopardstown and Stepaside there has been, in the recent past, a great deal of other residential development.
These lands, of approximately 5 hectares, are in the ownership of the County Council and are regularly used by local residents as a public amenity area and, in particular, as a means of gaining access to Fitzsimons Wood. Their existence and the zoning which attached to them, prior to the variation herein complained of, had been relied upon on several occasions by the local authority as justifying, not only grants of planning permission for residential development in the area but also as being available by way of compensation for other green space lost in the construction of the M50.
- By published notice in The Irish Times on Saturday, 26th May, 2001, Dun Laoghaire Rathdown County Council gave notice, pursuant to s. 13(2) of the Act of 2000 that it had prepared a draft of a number of proposed variations to its own County Development Plan of 1998. Those variation proposals were five in number with the designation, 2B being allocated to the subject lands at Blackglen Road, Sandyford. The said notice outlined that the existing zoning/objective of these lands was Objective F which in the Development Plan was "to preserve and provide for open space and recreational amenities". The proposed variation of this zoning was to Objective A which in the said Plan was designed to "protect and or improve residential amenities". The public were invited to make written submissions or observations with regard to these proposed variations within the period from 28th day of May to 28th day of June, 2001 and were told that the planning authority would take any such submissions or observations, so received by them, into account before making a decision on the said proposal.
- Of considerable importance to this case are the reasons given in the said notice for the proposed variation. These reasons and the introductory lead in were stated as follows:-
"…The draft of the proposed variations proposes the rezoning of four acres in the county from open space to residential use to provide for future residential development and the deletion of a long term roads proposal."
This statement of such reasons, which was in purported compliance with s. 13(3) (a) of the 2000 Act, is seriously challenged in this case as being an inadequate compliance with this statutory requirement and as constituting a breach of natural justice and fair procedures.
- A number of local people, who on or subsequent to its incorporation, became members of the applicant company were concerned at this proposal and, in particular, were worried about the likely adverse consequences which any suggested residential development might have on the ecological value of Fitzsimons Wood. Accordingly, they commissioned an assessment from Dr. Smal, an ecological consultant, on this wood which it will be remembered is located immediately to the north of the lands the subject matter of the proposed variation. His resulting report, dated 23rd June, 2001 makes a number of recommendations with regard to this proposed national heritage area. These include a suggestion that the wood should be preserved and protected by the maintenance of an adequate buffer zone around its periphery with most of the lands suggested for rezoning being used in this regard. Moreover, the original planning objective, namely Objective F, should be maintained and no variation of this should be proceeded with. Indeed, his recommendations also include a proposal to widen the extent of the boundaries of the wood to incorporate the subject lands or, alternatively, to separately designated such lands as a Nature Reserve.
- Under the title "Sandyford Environmental Planning and Road Safety Group," Mr. Connor Hannaway, described as chairman of that group, wrote to the County Council by way of letter dated 24th June, 2001. In that letter he set out a number of reasons for opposing the proposed variation and, in addition, enclosed a copy of Dr. Smal's report which was also being relied upon by the said group. It is pointed out in the grounding affidavit that the consultant's report does not deal with the issue of residential development in this area, as in the deponent's opinion such issue had not been given, and thereof had not been raised, by the County Council as a reason or one of the reasons for this proposed variation.
- The County Council, in plenary session, met on 9th July, 2001 to consider this proposed variation. Evidently, the individuals who had associated into this group were quite active and had not only spoken with members of the Council prior to the 9th July, 2001 but also had on that occasion(s) given a copy of Dr. Smal's report to each member of that Council. At the meeting on the 9th July, 2001 several of these individuals were in attendance. The County Manager presented a report to the Council under s. 13(4) of the 2000 Act. That report had apparently been circulated to the members of the council in advance of the meeting but the observations and submissions made in response to the published notice of the 26th May, 2001, had not been so circulated. That is, of course, save for the report of Dr. Smal. In any event, it would appear from the County Manager's report that seventy one submissions were received by the council in respect of the proposed variation No. 2B. The matters raised by these submissions were grouped under five headings which he identified as follows:-
(i) Open space/public park,
(ii) Nature conservation,
(iii) Rural and visual character of the area,
(iv) Environmental impact assessment,
(v) Traffic safety and access.
Under each separate heading there was a very brief summary or explanation of the
issues so raised. His response was then given. A debate ensued and following discussion on all five proposals, which collectively were referred to as "Variation No. 2", the Council adopted each proposal save for that pertaining to the subject lands. It decided that further consideration of these lands should be deferred until its meeting on 14th August, 2001, before which it sought the preparation and submission of a conservation plan in respect thereof.
- Objection is taken by the applicant to the manner in which this report was constructed. It criticises the reduction of the submissions and observations into five "bullet points", each of which runs to a little over three lines. It gives as an example to demonstrate how unsatisfactory this was by quoting the three line summary of Dr. Smal's report which, in its entirety, is a substantial document. It is also criticises the fact that the Manager's response in general is more lengthy than his recital of the objections. Moreover, it points out that whilst the report refers to seventy one submissions received it does not say, as was the fact, that all opposed the proposed re-zoning. Furthermore, it claims that even though the prescribed body, Duchás, called for an environmental impact assessment and sought "a further meeting" with the Council, the said report did not specifically associate that body with the request for an environmental impact assessment and, to the best of Mr. Dolan's knowledge, no such "further meeting" had ever taken place.
- By far the most important point, however, which the applicant relies upon as having emerged from this meeting, was the County Manager's reference to the council's Housing Strategy and to the Strategic Planning Guidelines. As a result of such reference, it firmly believes that the true justification for the proposed rezoning, in the first place, was such Strategy and such Guidelines. It claims that the general public was never alerted to such possible reasons or justification and, accordingly, never had an opportunity to address these matters within the prescribed period for making observations and submissions. If the published notice had been truly compliant with the statutory requirement, then this strategy and these guidelines would have been highlighted and, as a result, the focus of the objection raised by the group would have been different. In particular, it would have addressed these issues. In addition, it is claimed that the Housing Strategy in question was not adopted until 11th day of June, 2001 and, accordingly, was not in existence for the entire of the relevant period specified for submissions and objections. Ultimately Mr. Dolan says that on request, which he did not date, he received a copy of the housing strategy report on 10th September, 2001.
The second element of this particular criticism involved the Manager's reference to the Strategic Planning Guidelines. And, in particular, his reliance on achieving the "growth targets" projected in the guidelines as a justification for the proposed variation. It is said that these guidelines are complex and interrelated and that by isolating and relying only upon "growth targets", the Manager was in effect misrepresenting the guidelines as a whole. In this context the applicant commissioned and obtained from a planning consultant, a Mr. Michael O'Neill, a report dated January, 2002.
- Finally, the applicant also objects to the fact that a report dated July, 2001 and complied by M. Tubridy & Associates was apparently produced to and considered by the council at its final meeting when it adopted the variation. Up to then this report had not been made available to the general public and, therefore, the latter was deprived of an opportunity of making any comments or representations thereon.
- By reason of the events and circumstances outlined above, the applicant submits:-
(a) That the respondent County Council failed to comply with the mandatory provisions of s. 13(3)(a) in that the reasons given in the published notice for the proposed variation were incomplete and did not justify that proposal and furthermore were in effect meaningless as they amounted only to a repetition of the effect of the proposed variation.
(b) That given the true reasons for this proposal, namely to help implement the council's Housing Strategy and to achieve the "growth targets" projected in the Strategic Planning Guidelines, the failure to reflect those in the said notice, meant that members of the public were deprived of an opportunity of addressing these questions and consequently the principle of audi alteram partem was breached and the dictaets of fair procedures were not complied with.
(c) That the County Manager failed to comply with the provisions of s. 13(4) (b) of the said Act of 2000, by reason of the manner in which the submissions/objections were distilled, which in the circumstances, did not represent an impartial and objective report thereon, and also by reason of the failure to circulate, prior to the relevant meeting, full and complete copies of all submissions and observations so received. By reason of such matters the principle of audi alteam partem was again breached as were the requirements of complying with natural justice and fair procedures.
(d) That, since the County Manager relied upon the "growth targets" specified in the strategic planning guidelines, it was incumbent upon the council to adhere to these guidelines as whole with regard to its proposed residential development in this area. However if the proposed rezoning went ahead, as planned, the said guidelines could not be complied with in that; the area. was not adjacent to places of employment, was not served or adequately served by public transport, was not adequately provided for in terms of local services and also because of the negative impact to the proposed natural heritage area of Fitzsimons Wood. All of these grounds rendered the said variation ultra vires and invalid.
- The statement of opposition was filed on 24th day of May, 2002 on behalf of the sole remaining respondent, namely the County Council, the other respondents originally named having been deleted by the leave order of Ó Caoimh J. made on 11th day of February, 2002. Preliminary objection was taken on three points. Firstly, the council reserved the right to apply for security for costs which, in the circumstances, is not now relevant. Secondly, it claimed that since the applicant was incorporated on 8th day of February, 2002 only, that the company lacked the appropriate standing to bring or maintain these proceedings and thirdly, it alleged that in any event it had delayed and or failed to act promptly in accordance with O. 84 of the Rules of the Superior Courts.
Without prejudice to these objections, the statement at para. 9 thereof points to the exact context in which the Manager in his report made reference to the Council's Housing Strategy and to the Strategic Planning Guidelines. When dealing with no. 1 of the five issues raised in the submissions and observations received, (see para. 8 above) the Manager said the following:-
"(i) Open space/public park
This land was originally acquired by the Council for use as a public park and it should be kept an open space/park use, particularly in order to cater for the proposed additional housing in the area.
Response:-
This land was originally acquired in 1977 by Dublin County Council for a stores depot and open space purposes, but the lands were subsequently appropriated by Dun Laoghaire Rathdown County Council in 1995 under the Planning and Development Act, 1963 for use pursuant to the Planning Acts. Circumstances have changed significantly in the twenty four years since acquisition and this site is now required to facilitate the implementation of the Council's housing strategy 2001/2004 and to achieve the growth targets projected by the strategic planning guidelines. The development of these lands for residential purposes will be subject to the provision of quality open space".
- Being so considered in this context, the respondent claims that the reason for the proposed rezoning was to "provide for future residential development", exactly as was stated in the public notice of 26th May. It was said that the Manager was correct in outlining to the Council the statutory obligations of the local authority in the area of implementing its Housing Strategy and also in outlining the relevant policies or objectives of the Strategic Planning Guidelines. These guidelines, which are regional planning guidelines for the greater Dublin area, are guidelines which the planning authority must having regard to under and by virtue of s. 27 of the Planning and Development Act, 2000. Whilst these statutory obligations, namely the implementation of the housing strategy and the requirement to have regard to the guidelines, were both relevant to the rezoning, neither were in fact the reason for it. That was as above stated. Moreover, in order to give full understanding to his report, as was required by s. 13(4)(b), it was incumbent on the Manager to refer to both the strategy and the guidelines which he did.
- It was strongly denied that the manner adopted to summarise the received submissions was unfair or incomplete or otherwise unreasonable. A total of seventy one observations were, as previously stated, sent to the local authority. The Manager's report listed the persons and bodies from whom each of these submissions were received. Dúchas was specifically mentioned as indeed was An Taisce. On an analysis of the seventy one observations made almost half, that is thirty five, were duplicates of five separate letters which, in effect, demonstrated that there was considerable repetition in the material received. As the statutory requirement is to summarise the issues and not to summarise the contents, it was pleaded that the County Manager's report fully complied with s. 13(4) of the said Act.
And finally, apart from containing a denial of any statutory infringement on the Council's part or any breach of natural justice or fair procedures, the statement also asserted that the Manager's report was circulated to the members of the Council in advance of the relevant meeting and that full copies of all of the submissions were available for inspection by the elected members at such meetings.
- The replying affidavit supporting the respondent's position was sworn by one Michael Gough, who, at the relevant period, was the director of services in Rathdown County Council. Under the heading of "locus standi", he outlined the housing programme which the Council presently had in existence and he impressed upon the court the necessity of proceeding on foot of what is now a valid variation to the 1998 County Development Plan subject, of course, to these proceedings.
In addition, he pointed out that in respect of the proposal to vary the Council had received the submission referred to at para. 7 above from an entity describing itself as the Sandyford Environmental Planning and Road Safety Group. It was signed by its chairman Mr. Conor Hannaway. The respondent also received two submissions with the signatories of Dudley Dolan and Jane Dolan on both and a further two submissions from Jane Dolan of the same address. One of these was stated to be on behalf of Blackglen Residents Association. All four submissions had the same content. Mr. Hannaway apparently also made a submission in his own right. Given that the applicant company was only incorporated on 8th day of February, 2002, it necessarily followed that it was not in existence at any of the relevant dates and accordingly in the deponent's view, having been so advised, it lacked the requisite standing to maintain these proceedings.
- In relation to the third preliminary objection, namely the lack of promptness, it was pointed out that many of the individuals who subsequently became members of the applicant company, were in attendance at the Council meeting on 9th July, 2001 when the County Manager referred to the respondents' Housing Strategy and the Strategic Planning Guidelines. The variation as one knows was not decided upon at that meeting. It was adjourned for further consideration to 14th August (sic). During this time those same members commissioned from Dr. Smal a further report, dated 9th August, 2001 in the form of a Management Plan in respect of the conservation of Fitzsimons Wood and the adjacent lands. In contrast, however, no report was obtained or submitted to the Council with regard to their Housing Strategy or the Strategic Planning Guidelines.
- Mr. Gough reaffirmed the respondent's position that neither the Housing Strategy or the Guidelines were the reasons for this proposal, which reasons truly were to provide for future residential development. Accordingly, the public notice was accurate and correct. Moreover, the reference to these documents was in fulfilment of the requirements upon the County Manager when so reporting to his Council. Notwithstanding this position, the affidavit goes on to deal with the preparation of the Housing Strategy and how the Strategic Planning Guidelines were used as a basis for calculating whether or not the supply of housing was satisfying demand. From its analysis the County Council was satisfied that supply was not even close to filling the projected demand. On 5th April, 2001 notice was given of the preparation of a draft housing strategy in local circulating newspapers. Submissions were received up to the 4th May. The Manager reported to the Council on 18th May. A joint meeting of various committees of the council was held on 29th May. On 11th June the housing strategy was adopted. It was, therefore, as is evident from these dates, quite clear that the strategy was in the public domain during the consideration of the proposed variation. Ultimately, on 10th September, 2001 this strategy became Variation No. 3 of the 1998 plan.
- With regard to the Planning Guidelines, reference was made to the report of Mr. Michael O'Neill, the planning consultant retained on behalf of the applicant company. At p. 3 thereof he said:-
"While the current Dun Laoghaire/Rathdown Development Plan was adopted in 1998 prior to the publication of the Strategic Planning Guidelines for the greater Dublin Area (SPG) in 1999, it is reasonable to assume that any variation of the plan prepared for consideration after their introduction, would be subject to the provisions of the SPG. In particular any variation after this date would have to take due cognisance of the SPG".
In addition, Mr. Gough points out that whilst the proposed site is just outside the 1 km catchment area of the Luas line, it is nevertheless served locally by bus service to the city centre and to Blackrock. Moreover, given the proximity of the Sandyford Industrial Estate to this site it is highly likely that this estate will continue to be one of the largest sources of employment in the county. Indeed, it is government policy, as set out in the DTO Strategy (A Platform for Change) to service the estate by metro and if this happened, of course, further opportunities for gainful employment would exist. Furthermore, there is a national school at the junction of Blackglen Road and the Enniskerry Road, and in the Stepaside action plan, Lambs Cross is identified as an area where the Council will encourage mixed use proposals to help consolidate the local centre function of that cross.
- Having confirmed that the Manager's report was circulated to all members in advance of the meeting of the 9th July, and that full copies of all submissions were available for inspection by the elected members of that meeting, the deponent then pointed out that as result of the objections received, including the report of Dr. Smal, the council at its meeting on 9th July, 2001 decided that a conservation plan should be commissioned and presented to them prior to their next meeting of 14th August (sic). M. Turbidy and Associates were appointed for this purpose. A special meeting of the Council was then held on Monday 13th August, (not the 14th) to consider the proposed variation. The sole item on the agenda was such proposal. A copy of the Turbidy report had been circulated to the elected members prior to this meeting. Having regard to the oral presentations given and to the documentary evidence available, the members recommended that the site proposed in the variation be significantly reduced from 6.2 hectares to 2.37 hectares and that a buffer zone of 20 metres be provided between the proposed site and Fitzsimons Wood. This smaller site, was then voted upon by the Council and sixteen out of the nineteen members present voted in favour. In conclusion, Mr. Gough pointed out that if the proposed scheme of housing development for these lands should proceed then the same would be subject to a Part VIII procedure of the Planning and Development Regulations 2001. In all he denied that there has been any breach of natural justice or fair procedures or of non compliance with statutory requirements or that the ultimate resolution of the council was in any way ultra vires its power under the said s.13 of the Planning and Development Act, 2000.
- Having set out the factual context against which this case was initiated, Mr. Eamonn Galligan, S.C., who appeared on behalf of the applicant, made submissions on what he considered to be the three main grounds relied upon on behalf of the applicant. Firstly, there was a breach of s. 13(3)(a) in that the public notice did not contain the reason or reasons for the proposed variation. Secondly, the true reasons, in counsel's opinion, were those referred to by the Manager in his report (see para. 13 above), which reasons were incapable of justifying the said proposal and accordingly the variation was ultra vires. Thirdly, the Council in purporting to implement the statutory procedures acted in breach of natural justice and fair procedures. This resulted (i) from the respondent's failure to state adequately the reasons for the proposal and thereby to deprive members of the public of a full and informed opportunity of making submissions, (ii) from the inadequate summary, reduced to bullet points, of the submissions and observations made, and (iii) from the failure to circulate the elected members of the Council, prior to the 9th July meeting with the original submissions which also amounted to a breach of the audi alteram partem rule. In addition, the lack of independence in the County Manger was also relied upon in the sense that he also was the proponent of the proposed to zoning. This it is said was contrary to nemo judex in causa sua.
- Dealing with the objection made to the applicant's standing to bring these proceedings, counsel, having referred to O. 84, r. 20, of the Rules of the Superior Courts, acknowledged, as he had to, that the applicant company had not made any observations within the allotted period; this, of course, because it had not been in existence until the 8th February, 2002. However, the respondents did receive submissions from many of its present members including Mr. Doran. In essence, therefore, the core membership of the applicant, as a non-incorporated association, did make submissions and that fact was an important matter in considering the question of locus standi. Relying on Lancefort v. An Bord Pleanála (No. 2) [1999] 2 IR 270 Mr. Galligan S.C., contended that neither the fact of a potential challenger being a limited company or the fact that it was not incorporated until after the relevant decisions were made, were not in themselves sufficient to deprive the subsequent entity of locus standi. He referred to the decision of Morris J. in Lancefort, supra, who, when hearing the leave application, was satisfied that the applicant, though formed only after the date of the impugned decision, had nevertheless a sufficient standing to mount the judicial review proceedings. The involvement and interest of its members, prior to incorporation, in the planning process was an important point in this regard. On the substantive hearing, McGuinness J., following her earlier decisions in Blessington Heritage Trust Limited v. Wicklow County Council [1999] 4 IR 571 and Wicklow Heritage Trust Limited v. Wicklow County Council, (Unreported, High Court, McGuinness J., 5th February, 1998), held that the applicant did have locus standi to challenge certain aspects of the planning process but that such status did not extend to permitting a constitutional challenge. In the Supreme Court Keane J., as he then was, delivering the majority judgment of that court, held in reversing the High Court, that Lancefort did not have locus standi but according to counsel, this decision was principally based on a conclusion that issues raised in that court had not been previously argued or aired in the course of the planning process. The court did, however, hold that in certain circumstances an applicant, though a company with limited liability and effectively having no assets, could still have a sufficient standing in proceedings of this kind. At p. 317 of the report the learned judge said:-
"I do not arrive at the conclusion that the applicant lacked standing solely because of the fact that it is a company limited by guarantee owning no property affected by the permission. I would accept, as a general proposition, that such bodies may be entitled to locus standi in proceedings of this nature, although they cannot point to any property or economic interests being affected by the relevant decision. In Blessington Heritage Trust Ltd v. Wicklow County Council McGuinness J. said of companies such as the applicant:- '… blanket refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well resourced developer'.
I would agree with that approach, although not with its application by the learned High Court Judges in the present case. It is, understandably, a matter of concern that companies of this nature can be formed simply to afford residents' associations and other objectors immunity against the costs of legal challenges to the granting of planning permissions. Our law, however, recognises the right of persons associating together for non profit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi".
- However, Keane J. also said that the mere formation of a company such as Lancefort whose objective might be termed "public interest planning objectives", was not in itself sufficient to afford to it a sufficient legal standing and certainly not in circumstances where it was seeking to introduce before the courts issues which had not been raised during the planning process. The learned judge dealt with this point as follows at p. 315:-
"But it would, in my opinion, be a significant injustice to a party in the position of the notice party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings . . .
An examination of the merits of the case, accordingly, leads me to the conclusion that, if there had been any irregularity in the manner in which the first respondent [the board] discharged its functions, it could not possibly be regarded as constituting an abuse of power or a default in procedure sufficiently grave to justify affording locus standi to a body such as the applicant".
Accordingly, it was submitted on this authority that once a company such as the applicant had made standing "issue specific", then it had sufficient interest to mount proceedings similar to those which had been embarked upon in this case. The English case of Regina v. Hammersmith and Fulham LBC [1981] 80 L.G.R. 322 was also relied upon in this regard.
- On the second preliminary objection, namely the issue of delay, the most relevant dates, all of which are as set out above, must be the date of the published notice namely 26th May, the period for submissions which ran up to the 28th June, the 9th July being the first meeting of the Council to consider this matter and finally the date of the ultimate resolution which was the 13th August. Given that leave to apply for judicial review was obtained on the 11th February, 2002, it was claimed, with technical justification, that this was within the six month period which is provided for by O. 84 r. 21(1). Accordingly, the applicant under this particular heading concentrated on dealing with the allegation of having failed to act promptly as it is required by this said Order and Rule.
- The decision of McCracken J, in McEniry v. Flynn, (Unreported, High Court, McCracken J., 6th May, 1998) was cited in support. That case had as its subject matter an attempt to set aside a certificate of taxation. The learned trial judge said:
"'A preliminary point was taken that the application was either out of time or in any event should be dismissed because of delay. . . Reliance is also placed on the initial provision of Order 84, Rule 21 of the Superior Court Rules, namely that an application for leave to apply for Judicial Review shall be made promptly'.
While the applicant in the present case allowed almost the entire six months to expire, in my view there has been no prejudice to the respondent and I hold that the application was brought within the time period under the Rules".
On reviewing the relevant decisions in this regard and also in regard to the circumstances in which a court will "for good reasons" extend the period for bringing such proceedings, it became evident, according to the submission, that few challenges were successful where the proceedings were issued within the six month period. A consideration of the case law outside that period is not relevant on the facts of this case. Within the period it was claimed that there must be some particular feature of the case or type of litigation in question before a court would refuse to permit the continuation of proceedings because of alleged delay. DPP v. Judge McDonnell, (Unreported, High Court, Barr J., 1st October, 1990), a decision of Barr J., was relied upon.
- In the instant case it is alleged that the respondent council has suffered no prejudice on account of the dates in question and that no application has been made by it to the court for any priority. Moreover, it was pointed out that it is much more difficult for an entity like the applicant to institute major High Court litigation than it is, for example, for a county council to defend it. Before being in a position even to obtain full legal advice it is necessary for the applicant to obtain a report from a planning consultant on the question of the Council's Housing Strategy and on the Strategic Planning Guidelines. That report was received in January 2002 from Mr. O'Neill. There was no delay thereafter as the application was moved on the 11th February. Finally, it was said, relying upon the affidavit of Mr. Gough, that the Council was still, at that time, in the process of preparing a scheme which, when sufficiently ready, would form the subject matter of an application under Part VIII of the Planning and Development Regulations 2001. That preparation was still ongoing and, therefore, in all of these circumstances, there would be no justification for this court in striking down the proceedings for lack of promptness in their institution.
- Looking at the relevant statutory framework it was suggested that ss.13, 27, 94 and 95 of the 2000 Act were relevant. Under s. 13 a variation of a Development Plan could only take place "for stated reasons" which reasons had to be contained in the published notice. Once such reasons exist and once these were stated in the said notice, there was no further obligation on the local authority to again publish such reasons. (See s.13(8) of the Act). Section 94 of the Act of 2000 requires a planning authority to include a housing strategy as part of its development plan and where an existing plan was adopted prior to the Act of 2000 then, in accordance with s. 94 (1) (c), the planning authority had to prepare a Housing Strategy and had to adopt, in accordance with s. 13, that strategy as a plan variation within a period of nine months from the commencement of the section. Section 95 obliged a planning authority to ensure that sufficiently suitable land is zoned for residential use "or for a mixture of residential and other uses, to meet the requirements of the Housing Strategy." See sub-s. (1)(a) of that section.
These sections, when being implemented, are subject to an obligation on a council to consider primarily "the proper planning and sustainable development of the area to which the development plan relates". Again, under s. 27, a planning authority must have regard to any regional planning guidelines in force for its area when making or adopting a development plan. The Strategic Planning Guidelines for Dublin and the mid-eastern region are "regional planning guidelines" for the purposes of this section.
- Having quoted from the judgment of McCarthy J. in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99, at p. 113, on the importance of a development plan, it was then submitted that the published document of the 26th May did not constitute the giving of adequate or proper reasons in accordance with s. 13 (3) (a), in that the reasons purportedly given were but a reputation of the effect or consequences of the proposed rezoning and no more. It was alleged that no member of the public would have been alerted to the true reasons, being those based, it was claimed, on the Council's Housing Strategy and the Strategic Planning Guidelines. Accordingly, when making submissions, an opportunity was denied to the public, including members of the applicant. In support of the public's right to participate in the process the decision of Carney J., in Keogh v. Galway Corporation (No.1) [1995] 3 I.R. 457 was relied upon. In particular that passage at p. 463 of the report was quoted. It reads:-
"They are saying that the particular development is ultra vires the respondents by reason of it not having been notified in the development plan. They say that any other construction would set at naught their statutory right to make representations at the draft stage in relation to a development which affects them in a material and substantial way. This right is to make representations at a stage when there is a real prospect of the plan being altered as a result of those representations. They cannot make representations in relation to matters of which they are not on notice and could not anticipate …. It is central to the scheme of the Act that a citizen is to be given notice of a development which might affect him in a substantial way has the opportunity of stating his case in relation to what is projected".
- Because the planning legalisation, prior to the Act of 2000 did not have any provision comparable to that contained in s. 13 of that Act, there is an absence of relevant case law precisely on the point. In anticipation that perhaps the respondent's counsel would seek to rely on Laurientiu v. Minister for Justice, [1999] 4 IR 26 and Ni Eili v. Environmental Protection Agency, (Unreported, Supreme Court, 30th July, 1999) as forming the basis of a submission that once the essence of the decision was conveyed to the public then that would be sufficient, Mr. Gilligan S.C. went on to seek to distinguish each of these cases from the instant set of circumstances. He felt that there was a material point of difference between having to furnish reasons for a decision and having to furnish reasons for a proposal such as to vary a County Development Plan. Accordingly, he was of the opinion that these cases were of no assistance to Dun Laoghaire Rathdown County Council.
- The next submission made on behalf of the applicant dealt with the issue of audi alteram partem. It was, in counsel's opinion, a fundamental principle of administrative law that a person with an interest should have an opportunity of making submissions to the decision-maker and, that such submissions should be considered before the decision is made. It was the applicant's case that this had not occurred in the present case and, accordingly, there was a breach of this rule. The reasons underlying this submission, which are set out above, are that the true reasons were not contained in the published notice, that as a result the applicant had no opportunity of making submissions on the Council's Housing Strategy or the Strategic Planning Guidelines and that the manager's report to the council members was unfairly prejudicial to the submissions and observations made by members of the public. The case of Simunovich v. An Bord Pleanála, (Unreported, High Court, Lardner J., 24th July, 1988) was referred to. This involved a challenge by the applicant to an inspector's report of an oral hearing with his main complaint being that the same failed to provide a proper and detailed account of the submissions which had been made on one aspect of the case. The court, however, whilst holding that An Bord Pleanála was discharging an administrative rather than a judicial function went on to say that:-
"It must in hearing and determining such an appeal act judicially, that is to say it must act fairly as between the developer and the planning authority and third parties. Each party must be given an opportunity of making their case. Any representations made must be carefully considered…".
- Dealing specifically with the issue of the inspector's report, the learned judge then said:-
"In my view this report fails to give a fair and accurate account of the evidence and submissions on this issue to the board. It does not have to be a verbatim account but the considerable scope and extent of Colonel O'Carroll's evidence was referred to in the report with a brevity which rendered the report inadequate. Further it does not report that Colonel O'Carroll's evidence was specifically focused on the quarry site (in comparison with Dr. Hayes McCoy's, general treatment of the battle which did not specifically refer to this hill) and could be considered as supplementing Dr. Hayes McCoy's account or alternatively if not so regarded might be considered directly in conflict with it. Neither the body of the report nor the assessment seemed to me to represent adequately these matters to the board." See para. 4.610 of O'Sullivan Sheppard on Irish Planning Law and Practice for an edited version of this judgment.
And lastly, submissions were made on the rule nemo judex in causa sua.
32. On behalf of the respondent county council, Mr. Brian Murray S.C. replied. In essence, he argued that there were three broad issues in respect of which submissions would have to be made. The first concerned the requirement of the public notice, in particular, the allegation that it was defective by failing to mention the council's Housing Strategy and/or the Strategic Planning Guidelines. Secondly, the County Manager's report to the elected members had to be considered given the allegation that, in a number of ways, this constituted a breach of natural and constitutional justice, and thirdly, the suggestion made on behalf of the applicant that if the Strategic Planning Guidelines were or were one of the principal reasons for this proposal, then such guidelines were not a justification for it as the variation failed to comply with the overall requirements of the said guidelines.
- Addressing the question of locus standi, counsel claimed that since the applicant company was not incorporated at the relevant time, it did not, and obviously could not, make any submission to the respondent council. This equally meant that it did not and could not have been misled by the public notice. Whilst submissions were made by certain individuals who apparently, though without any verifiable proof, are now members of the applicant company, the applicant itself, as a separate entity could not be heard to make any complaints as perhaps the individuals concerned personally could. The failure of the Company to issue proceedings until almost six months had expired from the date of the resolution was also a factor to be considered under this heading and, in that regard, he referred the court to the decision of Ó Caoimh J. in Ballintubber Heights Ltd. v. Cork Corporation (Unreported, High Court, Ó Caoimh J., 21st June, 2002). However, the most important case in this regard, a case also heavily relied upon by the applicant, was Lancefort v. An Bord Pleanála (No. 2) [1999] 2 IR 270 and, in particular, at pp. 314, 317 and 318 thereof. Different extracts, to those mentioned by Mr. Galligan S.C., from the judgment of Keane J. were relied upon. The following passages from the now Chief Justice would appear to be relevant:-
"At the same time, it can hardly be disputed that, since the applicant was not even in existence at the time the decision which is challenged was made, its interest in the subject matter of the proceedings is somewhat tenuous, if indeed it can be said to exist at all."
And later in his judgment, having recognised that in certain particular circumstances such a company would potentially have locus standi, Keane J. continued:-
". . . It is, understandably, a matter of concern that companies of this nature can be formed simply to afford residents' associations and other objectors immunity against the costs of legal challenges to the granting of planning permissions. Our law, however, recognises the right of persons associating together for non-profit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi. Whilst shielding the members against an order for costs in the event of the company becoming involved in litigation may well be a consequence of limited liability, it is not necessarily the only reason why citizens concerned with issues as to the environment may decide to incorporate themselves as a company. It must also be remembered that, in the case of such a company, the High Court may order security for costs to be provided under s. 390 of the Companies Act, 1963, as indeed happened in this case."
34. The respondent in the present case had sought from the applicant by way of two letters, security for costs and a secured undertaking as to damages. These requests elicited no results. Therefore, the absence of any such security or undertaking are also matters to be considered under this heading.
In addition to the above, Lancefort is also of importance for another reason. In it it was "decided that the nature of the interest of the matter in question should be considered in the light of the nature of the argument which had been made". In other words, could the conduct complained of have been brought to the attention of the planning authority at the time when it was considering its decision or when it was making it. In the end, this is an important consideration on the question of standing, as is whether or not the applicant can demonstrate prejudice by the alleged inadequacy in question. Halpin v. Wicklow County Council, (Unreported, High Court, O'Sullivan J., 15th March, 2001 was relied upon.
In the aforesaid circumstances, it was submitted that the applicant company lacked the necessary standing to maintain these proceedings.
- The requirement imposed upon the Council under s. 13(3)(a) of the 2000 Act was, according to the argument, complied with in this case in that the reason stated in the published notice, namely "to provide for future residential development" was genuinely the reason and was in all of the circumstances an adequate reason. The mere fact that the wording of the suggested new Objective (F) coincided with the reason given was purely incidental. Several cases were opened and relied upon as indicating the court's approach to any requirement on a decision maker to give reasons. O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 37 at 39 was one such case, as was the endorsement by Murphy J. in Ní Eili v. Environmental Protection Agency, (Unreported, Supreme Court, 13th July, 1999, of what Evans L.J. had said in MJT Securities Ltd. v. Secretary of State for the Environment [1989] J.P.L. 138 (at 144) where it is stated:
"The Inspector's statutory obligation was to give reasons for his decision, and the courts can do no more than say that the reasons must be 'proper, intelligible and adequate' as has been held. What degree of particularity is required must depend on the circumstances of each case. In the instant set of proceedings there were two such circumstances of relevance. The first was the medium by which such reasons must be stated namely in a newspaper notice and secondly the nature of the underlying event which gives rise to the requirement to give reasons. In this case that was simply a proposal not an ultimate decision."
- In addition to O'Keeffe, and Ní Eili, supra, The State (Creedon) v. Criminal Injuries (Compensation) Tribunal [1988] I.R. 51 was referred to as well as the judgment of Barron J. in Orange Ltd v. Director of Telecoms (No. 2) [2000] 4 IR 159 and the judgment of Hardiman J. in FP and AL v. Minister for Justice, Equality and Law Reform [2002] 1 IR 164. These cases and in particular, F.D. and A.L., followed the principles above outlined which led to the reasonable conclusion that the notice of 26th May in this case was adequate.
- Dealing with the alleged breaches of fair procedures Mr. Murray S.C., having analysed s. 13(4) of the 2000 Act, submitted that when presenting his report, the County Manager was clearly adhering to the express terms of that section. As such, he could not possibly be said to be acting in his own cause. In addition, the requirement of the sub-section is to summarise the submissions and not to repeat them. The duplication found to exist in this case was a strong justification for such a provision. Moreover, no prejudice was in any way suffered by the applicant as its present members were given and availed of a full opportunity to make whatever submissions they wished, including the circulation carried out by them, to the council members of Dr. Smal's report prior to the meeting dated 9th July, 2001. Finally, in this regard it is claimed on behalf of the respondent that Mr. Gough's replying affidavit has dealt with the merits of all arguments contained in the report of Mr. Michael O'Neill which is exhibited in his affidavit. Even though there was no obligation on the council to so do, its response clearly demonstrates that the concerns expressed by this planning consultant were not sustainable.
38. By virtue of s. 27 of the 2000 Act, a planning authority must have regard to any regional planning guidelines in force within its area which, in this case, are what has been referred to as the strategic planning guidelines. To have such regard is an obligation of statute and that is why they were relied upon and used in the manner set out in para. 23 of Mr. Gough's affidavit. In addition, however, the argument made on behalf of the applicant is that these guidelines cannot be used as a basis for justifying the proposal is false given, in particular the views of Quirke J., when he recently considered the status of such guidelines in McEvoy and Smith v. Meath County Council, (Unreported, High Court, Quirke J., 2nd September, 2002). When dealing with an argument that Meath County Council failed to have due regard to the relevant guidelines the learned judge in dismissing the claim, at p. 23 of the unreported judgment said:
" … the obligation imposed upon the respondent by virtue of s. 27(1) of the Act of 2002 (sic) to 'have regard to' the Guidelines when making and adopting its development plan does not require it rigidly or 'slavishly' to comply with the Guidelines' recommendations or even necessarily to fully adopt the strategy and policies outlined therein."
In essence, it is claimed that from this judgment the true meaning of s. 27(1) is that the planning authority cannot ignore such guidelines and cannot proceed as if they did not exist. See p. 25 of the decision of Quirke J.
In conclusion, it was submitted on behalf of the respondent that the applicant company has no locus standi to bring these proceedings, that the published notice was in full compliance with s. 13(3) of the Act of 2000 and that the County Manager's report was equally in full compliance with s. 13(4) thereof. The entirety of this claim should therefore, in its opinion, be dismissed.
- That a planning authority may vary its development plan, under s. 13 of the Planning and Development Act, 2000 is not in dispute. Nor is it challenged that it can only do so "for stated reasons", which reason or reasons must then be incorporated in the notice required to be published under s. 13(3)(a) of the said Act. This, in my view, is one of the most fundamental issues which has been raised in the present case.
- The Act itself gives no express assistance as to what is meant by "the reason or reasons" in the relevant sub-section. Nor does it indicate what might be an inadequate compliance with its provision. Since there was no comparable provision in the planning code prior to the enactment of the Act of 2000, it is not possible to rely on any precedent arising thereunder. It is, therefore, necessary to turn to other circumstances where there is a requirement on a body to give reasons. Principally such an obligation arises from statutory provisions but, sometimes, it also emerges from the general requirement of fair procedures and constitutional justice. One such case, in the former category was Ní Éili v. The Environmental Protection Agency, supra, where the statutory framework expressly stated that:-
"A proper determination under s. 85(2) of the Act or a decision under s. 83(1) or 88(2) of the Act shall contain the reasons for the proposed determination or the decision".
On a challenge that the Agency was in breach of its statutory duty to provide reasons for its decision to grant an Integrated Pollution Control licence, Murphy J. found it appropriate to follow what Lord Justice Evans had said in MJ Securities Ltd., supra (see para. 35 above). With regard to an obligation to give reasons, that requirement was satisfied provided the reasons, so given were "proper, intelligible and adequate". What might, of course, be a sufficient compliance with this phrase would depend on the circumstances of each case as would the precise level of particularity required.
- This approach was considered in some depth, in the context of the Immigration Act, 1999, in the case of FP and AL v. Minister for Justice, Equality and Law Reform, supra. In three joined cases each applicant had applied for asylum which was refused at the first hearing and also on appeal. As was their right, they then applied under s. 3(3)(b) of the said Act of 1999 to the respondent Minister for leave to remain in the State on humanitarian grounds. If, having considered such an application, the Minister was of the mind to refuse the request and if, likewise, he was of the view that he should consider the making of a deportation order then, s. 3(3)(a) of the Act became relevant. That provision reads:-
". . . where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it . . . "
The Minister was so minded in each of these cases and, accordingly, on his behalf the following letter was written to each of the applicants. It read:
"I am directed by the Minister for Justice, Equality and Law Reform to refer to your current position in the State and to inform you that the Minister has decided to make a deportation order in respect of you under s. 3 of the Immigration Act, 1999. A copy of the order is enclosed with this letter.
In reaching this decision the Minister has satisfied himself that the provisions of s. 5 . . . are complied with in your case.
The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interest of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of your case as might tend to support your being granted leave to remain in this State."
Being aggrieved at this result, a judicial review challenge was unsuccessfully made in the High Court and, on appeal, the Supreme Court through the judgment of Hardiman J., who unanimously upheld that view.
- The major challenge was to the adequacy of this notice with the applicants alleging that the same was in breach of the Minister's duty to give reasons under s. 3(3)(b)(ii) in that the said letter:-
(a) gives inadequate reasons;
(b) was not readily understandable;
(c) was devoid of reasons;
(d) was deficient in failing to explain public policy in the common good;
(e) constituted a reflection on the good name and reputation of the applicants insofar as it suggests that the common good required the deportation of each applicant and
(f) took into account extraneous or unintelligible matters.
Having adopted the view of Evans L.J. in MJ Securities Ltd., Hardiman J. went on to point out:-
" … that the question of the degree to which a decision must be supported by reasons as stated in detail will vary with the nature of the decision itself. In a case such as International Fishing Vessels v. Minister for the Marine [1989] I.R. 149 or Dunnes Stores v. Maloney [1999] 3 IR 542 there was a multiplicity of reasons, some capable of being unknown even in their general nature to the person affected. This situation may require a more ample statement of reasons than in a simpler case where the issues are more defined."
- He then made reference to the position prior to the enactment of the 1999 Act and quoted with approval the following extract from Geoghegan J. in Laurentiu v. Minister for Justice [1999] 4 IR 26 where the trial judge said at p. 34:-
"I do not think that there was any obligation constitutional or otherwise to set out specific or more elaborate reasons in that letter as to why the application on humanitarian grounds was being refused. The letter makes clear that all the points made on behalf of the applicant had been taken into account and of course they were set out in a very detailed manner. The letter is simply stating that the first named respondent did not consider the detailed reasons sufficient to warrant granting the permission to remain in Ireland on humanitarian grounds. It was open to the first respondent to take that view and no court can interfere with the decision in those circumstances."
Even though the circumstances between FP and AL and Laurentiu were different in that the requirement in FP and AL was an obligation of statute, nevertheless this approach of Geoghegan J. found favour with Hardiman J. Being thus satisfied that this was the correct way in which to approach the duty to give reasons under s. 3(3)(a) of the 1999 Act, the Supreme Court, despite such an extensive attack on the adequacy of the said letter, nevertheless dismissed the appeal and confirmed that the stated sub-section had been complied with.
- It has always been accepted and, certainly, insofar as administrative tribunals are concerned, that whilst reasons were required for their decisions, the nature and extent of the detail never extended to providing "a discursive judgment as a result of its deliberations". See O'Donoghue v. an Bord Pleanála [1991] I.L.R.M. 750 at p. 757. In addition, there is no doubt in my mind but that the type of decision in question is highly relevant as is the aim and objective of the underlying requirement, whether it be statutory based or otherwise, to give reasons. In Orange Ltd v. Director of Telecom (No. 2) [2000] 4 IR 159, Barron J. pointed out that inherent within the guarantee of fair procedures may be a requirement to give reasons. If such should exist then a failure to comply may have several consequences including an inability on the part of an applicant to exercise a right of appeal. Other consequences quite clearly may also follow. Therefore, in my view, it is perfectly permissible to look at the purpose of the requirement and also the decision in question.
- What is in issue here is a proposal, which, if carried would lead to a variation of a development plan but only after a statutory process and procedure has been complied with. We are not dealing with the making of a decision which could have profound and immediate consequences for those affected. We are not dealing with a statutory report from an inspector or other designated person, whether under the Planning Acts, the Housing Acts or otherwise. We are simply addressing a proposal emanating from a local authority. In that context, it appears to me that the purpose and aim of obliging the respondent to publicly state the reasons for its proposal is to afford members of the public an opportunity of engaging in the subsequent process during which they would have a right to make submissions or observations on matters of concern to them. The objective is to put the public on notice of matters likely to interest those concerned and to do so in such a way that any member, who informatively considers the notice, will recognise the essentials of the proposal, and depending on detail or complexity, will be alerted sufficiently to further evaluate the underlying reasons for that proposal. For any proposal there may be reasons, some of which are proximate, some of which are less so, and indeed, some of which are so remote that any connection with the subject matter is highly tenuous. What is required, in my view, in order to comply with the duty of the provision in question, is to meaningfully impart information, sufficiently intelligible to a reasonable person, who could, from such information, understand the said proposal. See Finlay C.J. at p. 39 of the report in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 where he was dealing with an admittedly different but nonetheless analogous set of circumstances. If the notice so complies then, in my view, it is sufficient.
- In this case one of the relevant circumstances is the method by which the reasons must be given. It is by way of a newspaper notice which, evidently, is quite unlike the method of communication in FP and AL or the written decision of an administrative tribunal or the report of a Planning Inspector. By its very nature it is not practical or feasible to give extensive reasons through the medium of a newspaper notice. Whilst, of course, the duty to comply remains nonetheless this, in my view, is a factor in evaluating that compliance.
- In my opinion, the words used in the said notice, namely "to provide for future residential development . . . " must, at least on their face, amount to a reason or reasons for such proposal. If that be so, it is difficult to see how this wording can be rejected merely because the same can be implied from or coincidental with the wording of Objective (A) in the County Development Plan, which is, as previously stated "to protect or improve residential amenities". The mere fact of the stated reason being in some way the repetition of Objective (A) does not, in my opinion, make the reason invalid, per se, if otherwise that is not the case. Assuming for a moment, therefore, that this is the true reason, one must then ask whether it was sufficient to alert members of the public in the manner described above. What would a reasonable person take from the suggested future residential development of the land in question? In my view, this type of phrase would immediately convey an intention behind the proposal, to provide for those lands, if the variation was adopted, a scheme which resulted in the construction of a residential development with such associated and ancillary services which follow from such a development. What in broad terms that would have involved, not only for the existing use but also for its future direction, was or, with ease, could have been ascertained. In addition, having specified the exact location of the subject lands, one would have been able to immediately identify the adjacent location of Fitzsimons Wood. Again, an enquiring person would readily have been able to envisage, at least some consequences for that designated conservation area. As a result, I am quite satisfied that the notice served its intended statutory purpose and that it was far more meaningful than if there was simply a reference to a Housing Strategy or to the Strategic Planning Guidelines, even if either or both of these were the true reasons for the said proposal, a suggestion which, in fact, I reject. That the notice served its intended purpose is at least in part demonstrated by the receipt of 71 submissions including many from those who are now members of the applicant company as well as the Report and Management Plan from Dr. Smal. Indeed, it is interesting to note that as a result of the elected members consideration of the submissions and observations made, there were what undoubtedly could be described as significant concessions gained in the form of amendments to the original proposal. I am, therefore, satisfied that the form of words used in the notice to convey the reasons behind the proposal were sufficient in order to comply with the obligations of s. 13(3)(a) of the Act of 2000. In saying this, however, I wish to emphasise that, in my view, a local authority should not have or adopt a minimalist standard to the contents of such a notice and, if anything, should err on the side of an expansive approach. If for example the true reasons for this proposal were the Council's Housing Strategy and or the Strategic Guidelines, then, whilst these would have to be referred to, I doubt strongly if a mere reference to such documents, and no more, would have conveyed in recognisable language the meaningful information which, in my opinion, the public are entitled to expect from such a notice. So, whilst I believe that the notice in this case did contain reasons which were "proper, intelligible and adequate", I would caution strongly against any practice on policy, used or designed, directly or indirectly to limit, whether by omission, phraseology, or otherwise, information which should be supplied to the public.
- As stated above, a planning authority must have regard, under s. 27 of the 2000 Act, to what has been referred to as the Strategic Planning Guidelines. That is a statutory obligation upon it. Indeed, under sub-s. (4) of the section, it is obliged to review its existing plan and "consider whether any variation of the development plan is necessary in order to achieve the objectives of the regional planning guidelines". The use to which such guidelines were put in this case in the preparation of the housing strategy was explained by Mr. Gough in that they formed the basis "for calculating whether or not the supply of housing was satisfying demand". This is quite a legitimate use of such guidelines. In addition, the council must, under s. 94 of the Act, have in place a housing strategy and must ensure that any development plan "provides for the housing of the existing and future population of the area in the manner set out in the strategy". See sub-s. (1)(a). In conjunction with this requirement, it is obliged to ensure under s. 95(1)(a) that sufficient and suitable lands are zoned for residential use. These obligations are upon it pursuant to statute. These provisions are within the framework of the Act and are mandatory in nature. Therefore, a local authority has no choice but to implement these requirements.
- That being so, I feel with respect that the applicant is over-interpreting the Manager's report to the elected members. That report must comply with sub-s. (4) of s. 13. However, I cannot see any statutory rejoinder on what additional content might be contained within it. In my view, given the complimentary and interactive workings of a local authority and, in particular, the statutory provisions above mentioned, it would be quite proper, in my opinion, noting as I do the nature of a manager's relationship with his elected members, that in reporting to his council he would establish the context and give the relevant background to any proposal contained within that Report. This, I think, explains the reference to the Council's Housing Strategy and the Strategic Planning Guidelines in his report to the meeting of the 9th July. I do not read the relevant passage as confirming that the reason for the proposed variation was either the strategy or the guidelines both of which undoubtedly formed part of the background to the proposal. Instead, I am satisfied to accept from a reading of his entire response that the reason for the variation was that as sworn to by Mr. Gough in his replying affidavit. I, therefore, think that the applicant is mistaken in this regard. This also means that, in my opinion, the guidelines were not the justifying basis for the proposal and in the absence of a direct challenge to the legality, as such, of such guidelines, I do not think it relevant to further consider the submission that the proposal was ultra vires in that it was incompatible with these said guidelines. Equally so, it also means that any issue on dates referable to the Housing Strategy is likewise not relevant.
50. It is now necessary to consider in more general detail whether the report was in compliance with s. 13 (4) of the Act. Under that sub-section such a report must:-
"(i) list the persons or bodies who made submissions or observations under this section,
(ii) summarise the issues raised by the persons or bodies in the submissions,
(iii) give the response of the manager to the issues raised, taking account of the proper planning and sustainable development of the area, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government".
- It is said on behalf of the applicant that the manager's report was defective in a number of respects. In the first instance, it is claimed that the entire submissions and observations made in response to the published notice, should have been circulated to each member of the elected Council prior to the first of the relevant meetings. Secondly, it is suggested that the manner of summarising the content of those submissions and objections was inadequate and when taken against the manager's response conveyed an incomplete and unfair representation of those observations and submissions. Thirdly, it is claimed that the objector's names should have been assigned against their particular objection. In addition, a broader challenge was outlined in the documentation to the effect that since the Manager also proposed the variation he was in effect debarred from making any report under s. 13 (4) as, when doing so he was effectively acting as judge in his own cause. In view of our overall scheme of local government and given the refusal by Ó Caoimh J. to permit a challenge to the constitutionality of s. 13 (4) of the Act, this submission, in my view, is not sustainable. Indeed, in fairness, it should be stated that it was not pursed by counsel on behalf of the applicant.
- In my opinion, there is no obligation on the County Manager under the relevant provision to circulate to each member of the Council, prior to the commencement of their consideration, the entirety of the objections and submissions received by it. The requirement on the Manager is to "summarise the issues" raised by such persons. This, in my view, cannot be read as imposing the wider obligation as is suggested on behalf of the applicant. The duty upon him is but to "summarise" the issues raised. Accordingly, I cannot agree that by any method of statutory interpretation the Manager is obliged to circulate in full all the submissions and observations received. In addition, it seems from the uncontroverted evidence that his report was available to council members prior to the 9th July, 2001 and that, at such meeting there was available cases of the entire submissions so received. Moreover, from the applicant's point of view its members took steps to circulate to each Councillor Dr. Smal's report and presumably any other documents which they saw fit to do so. I, therefore, don't believe that the argument now advanced on behalf of the applicant company is in any way sustainable.
- Likewise, I am of the view that the distillation by the Manager of the public submissions was adequate and was within the duty imposed upon him. In complying with this obligation he is not bound to use any formula or follow any specified method. There is within the section scope for a variety of presentations, some of which by choice may be far more extensive than others. The applicant's challenge, however, is not put in this way. In truth, this is a question of statutory interpretation, and although quite briefly dealt with, I am nevertheless satisfied that the issues raised, both in substance and in materiality, were adequately outlined in his said report.
- Another aspect of this challenge is an allegation that the report did not mention or mention adequately the identity of those who had made submissions or observations. This is not, I think, borne out by the evidence and, in particular, not by the report itself. It is clear from this document that all who made submissions were identified by name and address as were the two prescribed bodies who responded namely, An Taisce and Dúchas. See the beginning of the Manager's Report when dealing with variation No. 2B. In addition, when mandated by the statutory process there was no obligation on the Council to have any further meeting with An Taisce or others. I, therefore, don't believe that there is any substance in this point nor is there anything in the complainant that he failed to expressly state that all 7 submissions were against the proposal. That this was so was entirely self evident.
In conclusion, on this aspect of the claim, the applicant also alleges that the Manager was in effect so influenced by institutional bias that he was incapable of compiling an objective report and also that some infirmity attached to the Council's consideration to the Tubridy Report.
From a consideration of submissions and observations made, I am satisfied that the Manager was not only capable of impartially reporting the issues to the elected members but that in fact he did so. Firstly, I am of the view that the members were well within their rights to seek and consider the report from Mr. Tubridy which, it would appear was ? in the ultimate decision arrived at.
- Having dealt with the substance of the application in the above manner it is not, in my view, strictly necessary to dwell on the question of standing, the question of delay and the exercise of any discretion vested in me. On the question of locus standi, the submissions of the parties and the cases which they cited in support are outlined above. On the question of compliance with O. 84, r. 21 (1) of the Rules of the Superior Courts, I would, however, like to say something. There is no doubt but that not later than 9th July, 2001, Sandyford Environmental Planning and Road Safety Group and many other individuals who now apparently are members of the applicant company, were aware of the County Manager's report and, in particular, of his reference to the Council's Housing Strategy and the Strategic Planning Guidelines. In addition, these individuals must have known as to how he summarised the submissions and observations made and what his response thereto was. Furthermore, it was common knowledge that such submissions were not circulated in advance to the Council members. Therefore, there existed at that time sufficient information to enable such persons to take the matter further if they so wished. Undoubtedly, it was reasonable, in my view, to await the ultimate decision of the Council. That, however, took place on the 13th August, 2001. And yet, the company was not incorporated until the 8th February, 2002 and the leave order not applied for until 11th February, of that year. In the submissions, though I can find no trace of an evidential basis in the affidavits for the following, it was claimed that the delay in moving is attributable to the necessity of having to obtain a report from the planning consultant and also of having to obtain legal advise on the courses of action opened. This report from Mr. O'Neill is dated January, 2002. There is no information, however, as to when it was requested. Even if there was, I cannot conceive the same would be sufficient justification for the delay in question. All of the relevant material was available to Mr. O'Neill. There is nothing that I can see from his report which could not have been considered in late summer/early autumn of the previous year. It is exactly the same with regard to obtaining legal advice. I therefore have great reservations as to whether it could be said that this application was brought "promptly", within the said order and rule above mentioned. Even in the absence of express prejudice and appreciating as I do the difficulties of an association like the applicant in mounting High Court proceedings, nevertheless, I truly believe that would be litigants are running a serious risk by deferring proceedings for such periods of time. In any event, as I have said, I am not deciding the case on this point.
- In the above circumstances the issue of discretion does not arise.
- In conclusion, I refuse the reliefs sought.
