Browne v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1991
• Neutral Citation: 1989 WJSC-HC 918
• Court: High Court
• Docket Number: 85 JR/1989,[1989 No. 85 J.R.]
• Date: 01 January 1991

1989 WJSC-HC 918

THE HIGH COURT

85 JR/1989

BROWNE & ORS v. AN BORD PLEANALA

MICHAEL BROWNE AND OTHERS

.v.

AN BORD PLEANALA

Citations:

EEC DIR 85/337

KILDARE CO COUNCIL, R V COMMISSIONERS OF VALUATION & GREAT SOUTHERN & EASTERN RAILWAY CO 1901 2 IR 21

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

GALLAGHER SHATTER & CO, STATE V DE VALERA 1987 IR 55 1987 ILRM 555

ELECTRICITY SUPPLY BOARD (ESB) V GORMLEY 1985 ILRM 494

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

CRODAUN HOMES V KILDARE CO COUNCIL 1983 ILRM 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

TREATY OF ROME ART 89

TREATY OF ROME ART 191

COMMISSION OF THE EUROPEAN COMMUNITIES V BELGIUM 1980 ECR 1 473

TREATY OF ROMR ART 189

COMMISSION OF THE EUROPEAN COMMUNITIES V ITALY 1984 1 CMLR 148

COMMISSION OF THE EUROPEAN COMMUNITIES V GERMANY 1986 3 CMLR 579

EUROPEAN COMMISSION V BELGIUM 1988 1 CMLR 248

MCDERMOTT & COTTER V MIN SOCIAL WELFARE & AG 1987 ILRM 324

EEC DIR 79/7

MARSHALL V SOUTHAMPTON HEALTH AUTHORITY 1986 1 CMLR 688

FOSTER V BRITISH GAS 1988 2 CMLR 697, 1987 ICR 52

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 26

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 14

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 15

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 16

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 27

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 28

EEC DIR 85/337 ART 6(2)

LOCAL GOVT (WATER POLLUTION) ACT 1977

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

Synopsis:

PLANNING

Permission

Grant - Appeal - Dismissal - Judicial review - Estoppel - Council of European Community - Directive - Implementation by State - Departmental circular - Sufficiency - Whether planning board bound by provisions of directive - Held that the requirements of a directive of the Council do not become part of the law of a member State of the Community until the directive is implemented by such law - Held that a departmental circular does not constitute an implementation of the provisions of the Directive within the State: ~Commission of the European Communities v. Belgium~ [1980] E.C.R. 1473, ~Commission of the European Communities v. Italy~ [1984] C.M.L.R. 148 and ~Commission of the European Communities v. Belgium~ [1988] C.M.L.R. 248 considered - Held that the circular had not incorporated the requirements of the Directive into the domestic law of the State - Treaty of Rome, articles 189, 191 - Local Government (Planning & Development) Regulations, 1977 - Local Government (Planning & Development) Act, 1963, s. 26 - (1989/85 JR - Barron J. - 27/7/89)

|Browne v. An Bord Pleanala|

EUROPEAN COMMUNITIES

Council

Directive - Implementation - Form - Government - Departmental circular - Sufficiency - ~See~ Planning, permission - (1989/85 JR - Barron J. - 27/7/89)

|Browne v. An Bord Pleanala|

1 Judgment of Mr. Justice Barron delivered the 27th day of July 1989.

2 On the 15th July 1988 Merrell Dow (the developer) applied to Cork Country Council (the planning authority) for permission for a development consisting of the construction of a pharmaceutical facility at Burges Lower and Finisk Killeagh in the Country of Cork in accordance with plans and particulars lodged. Notification of the intention of the planning authority to grant the permission sought subject to conditions issued on the 26th August 1988. The Applicants and others appealed this Order. The appeal which lasted for eight days was by way of oral hearing and took place in December 1988. Following this hearing the Respondent granted the permission sought again subject to conditions by Order dated the 24th February 1989.

3 The objectors who are local farmers and members of the Womanagh Valley Protection Association now seek Judicial Review of that Order.

4 The basis of the Applicants' case is that the developer when making its application did not comply with the provisions of the Directive of the Council of the European Economic Community of the 27th June 1985 (85/337/EEC) on the assessment of the effects of certain public and private projects on the environment. They submit that this directive which required to be implemented on or before the 3rd July 1988 was implemented in this State by a circular letter dated the 1st July 1988 from the Department of Environment to the several planning authorities within the State. They submit that the developer omitted from the environmental impact study which it was required to submit with its application certain data and other information which was required by the directive. They submit that in those circumstances no valid application for planning permission for the proposed development ever came before the planning authority. Accordingly they submit that neither that body nor the Respondent ever acquired the necessary jurisdiction to make the Orders which they seek to have quashed.

5 The relief sought is opposed by the Respondent and by both the developer and the planning authority who have been made Notice Parties to the proceedings.

6 Both the Respondent and the planning authority accept for the purpose of these proceedings that the directive applied to the application but both submit that its provisions have been followed. The planning authority in addition submits that the Applicants are estopped from obtaining relief by the virtue of having appealed its Order and taking part in the Appeal before the Respondent. The developer denies that the directive has been implemented and submits that it does not have the force of law within the State nor does it impose any obligations upon it in relation to its application. It further submits that if the directive applies its terms have been observed.

7 In support of its preliminary point the planning authority refered to Regina (Kildare County Council) .v. Commissioners of Valuation and Great Southern and Western Railway Company 1901 2 IR 215. In that case there was a revaluation by the Commissioner of Valuation of the entire line of the Railway Company. The valuation of that portion of the line in the Country Kildare was decreased. The Kildare County Council appealed this valuation first to the Commissioner for a rehearing and when refused then appealed to the County Court. The Notice of Appeal did not raise lack of jurisdiction as a ground of appeal and this point was not argued in the County Court. Having lost that appeal the Kildare County Council then sought to quash the revised valuation lists on the ground that the Commissioner of Valuation had no jurisdiction to revalue the line in the Country of Kildare since no one within that county had applied to him to make such revaluation. The County Council was held to be estopped by its conduct from making that submission. Holmes L.J. at page 231 said:

"I cannot conceive a stronger case of estoppel by conduct than the present. The appeal that was taken, so for from raising the point now relied on, asked for relief that could only be granted on the assumption that there was jurisdiction to revise the valuation; and the appellant now seeks to quash the order of the Court whose assistance he invoked, because, although it was to a certain extent in his favour, it was not so favourable as he expected, or desired. Upon this ground I am of opinion that the appeal ought to be allowed, and the order for the issue of the writ of certiorari discharged."

8 A similar situation arose in Corrigan .v. Irish Land Commission 1977 I.R. 317. In that case, two lay Commissioners had certified that the Plaintiff's lands were required for the relief of congestion in the immediate neighbourhood. They were then included upon a provisional list for vesting in the Land Commission. The Plaintiff objected to this listing and his objection came for hearing before the same two lay Commissioners. No objection was taken to their hearing the appeal which the Plaintiff lost. He then sought to quash the Order on the ground of bias. It was held that he was barred by his own conduct from seeking to set aside the decision.

9 Counsel for the Applicants has referred to the State (Gallagher Shatter and Company) .v. De Valera 1986 ILRM 3. In that case a client of a firm of Solicitors who had paid an agreed sum by way of costs sought to have those costs taxed before the Taxing Master. The Solicitors objected to the taxation upon the ground that the Taxing Master had no juriadiction. They appeared and made the preliminary objection that the Taxing Master had no jurisdiction. When overruled on this submission they then contested the matter on the mertis. Being dissatisfied with the result, they sought to quash the decision for want of jurisdiction. It was submitted that they had waived their right to make this submission by reason of their participation in the taxation. This argument was rejected. On this issue McCarthy J. giving the Judgement of the Court said at page 9:

"It may be that the prosecutors might have brought an immediate application for an order of prohibition and, as I have sought to indicate in this judgement, should have succeeded in such application, but it does not appear to me that justice is served by determining a case of this kind against a solicitor because, whilst maintaining his objection, he thought it more practicable to allow the taxation to proceed, in the hope that the result would, in any event, be satisfactory. When, far from being short of satisfactory, it held him guilty of making a gross overcharge, in my view he is not to be defeated by a plea of waiver."

10 It seems to me that a Court should be slow to make a decision which in essence depends upon the nature of the relief which is litigent has been advised to seek. This must be particularly so now that State Side procedures have been simplified by new rules whereby an Applicant seeks Judicial Review in...