Eircell v Leitrim County Council

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Diarmuid B O'Donovan
Judgment Date29 October 1999
Neutral Citation1999 WJSC-HC 2713
Date29 October 1999
Docket Number[1999 No. 119 JR]

1999 WJSC-HC 2713

THE HIGH COURT

No. 119/1999
EIRCELL LTD. v. LEITRIM CO. COUNCIL
JUDICIAL REVIEW

BETWEEN

EIRCELL LIMITED
APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OFLEITRIM
RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S30

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S30(2A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S39

O'KEEFFE V BORD PLEANALA & O'BRIEN & RADIO TARA LTD 1993 1 IR 64, 1992 ILRM 237

P & F SHARPE LTD & GROVE DEVELOPMENTS V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

IRISH PHARMACEUTICAL UNION, STATE V EMPLOYMENT APPEALS TRIBUNAL 1987 ILRM 36

DUFF V MANGAN GLEESON & DPP 1994 ILRM 91

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORP 1982 ILRM 590

BANE V GARDA REPRESENTATIVE ASSOC 1997 2 IR 449

LEARY V NATIONAL UNION OF VEHICLE BUILDERS 1971 CH 34

INGLE V O'BRIEN 1975 109 ILTR 7

MORAN V AG 1976 IR 400

IRISH FAMILY PLANNING ASSOC & WILSON V RYAN 1979 IR 295

EAST DONEGAL CO-OP LIVESTOCK MART LTD V AG 1970 IR 317

GAMMELL V DUBLIN CO COUNCIL 1983 ILRM 413

HUGHES V BORD PLEANALA UNREP GEOGHEGAN 30.7.1999

Synopsis

Planning

Judicial review; planning; revocation of planning permission; respondent had granted planning permission to applicant; respondent by resolution decided at a special meeting to revoke said grant of planning permission; respondent served notice to that effect on applicant; before taking decision, respondent had been advised that planning officer had certified that no change in circumstances relating to proper planning and development of the area concerned had occurred since grant of planning permission; reason for decision stated to be a "change of circumstances", as well as "considerable fear, apprehension and opposition" of local community in respect of proposed development; respondent did not inquire into circumstances obtaining at time of grant of planning permission, nor did it investigate the validity or otherwise of grounds upon which revocation decision was based; applicant seeks declaratory relief and orders of certiorari in respect of decision to revoke grant of planning permission and in respect of notice of revocation of grant of planning permission; whether grounds of revocation decision constituted proper planning considerations; whether grounds of revocation decision constituted a "change of circumstances" within meaning of s. 30, Local Government (Planning and Development) Act, 1963, as amended by s. 39, Local Government (Planning and Development) Act, 1976; whether respondent sufficiently informed to take any decision; whether onus on applicant to prove circumstances obtaining at time of grant of planning permission and that circumstances considered by elected representatives of respondent county council in deciding to revoke did not obtain at that time and that no change in circumstances had occurred; whether rules of constitutional justice ought to have been observed by respondent in deciding to revoke planning permission; whether applicant should have exhausted its statutory right of appeal to the Minister before applying for judicial review.

Held: Reliefs granted; onus not on applicant where Court is not concerned with reasonableness of impugned decision but with question of whether respondent had informed itself sufficiently to make any decision at all; respondent must inform itself sufficiently, especially (but not merely) because of the opinion of the planning officer; where a body is making a decision arising from a statutory power and body is obliged to act judicially, then, in absence of procedure laid down by statute from which power derives, body must supplement that lacuna in such fashion as to ensure compliance with constitutional justice; Court has a discretion to refuse relief on ground that applicant has an alternative remedy which was not prosecuted; public at large is entitled to know that planning authority cannot ignore principles of constitutional justice and fair procedures and judicial review facilitates this end; Courts should not be reluctant to intervene in cases which do not simply involve considerations of a purely planning and development nature.

Eircell Limited v. Leitrim County Council - High Court: O'Donovan J. - 29/10/1999 - [2000] 1 IR 479 - [2000] 2 ILRM 81

The county manager of the respondent had granted planning permission for the erection of a telecommunications antenna to the applicant. Subsequently the respondent passed a resolution revoking the planning permission and served a notice to this effect. The respondent cited a change of circumstances including fear and apprehension among the local community as a basis for its decision. The applicant took judicial review proceedings claiming, inter alia, that the respondent should have afforded it an opportunity to make submissions regarding the intended revocation. The applicant also claimed that the requirements of constitutional justice and fair procedures had not been observed. O'Donovan J held that the respondent had not sufficiently investigated the issue of whether there had been a change of circumstances. The applicant should have been informed of the intention to revoke the planning permission and afforded an opportunity to make submissions. The decision of the respondent to revoke the planning permission was accordingly invalid.

1

Mr Justice Diarmuid B O'Donovandelivered on the 29th day of October 1999

2

This case comes before the Court on foot of an Order of the High Court dated the 26th day of March 1999 granting the Applicant leave to apply for judicial review by way of Declarations and Orders of Certiorari asfollows;

3

1. A Declaration that the Order made by the Respondent on the 1st day of March 1999 whereby it was decided to revoke a grant of planning permission bearing the register reference number P/ 13655 is ultravires, invalid and of no legal effect.

4

2. An Order of Certiorari quashing the said Order of the Respondent made the 1st day of March 1999.

5

3. A Declaration that the notice of revocation dated the 2nd day of March 1999 and served on the Applicant herein is ultra vires,invalid and of no effect.

6

4. An Order of Certiorari quashing the said notice of revocation dated the 2nd day of March 1999.

7

At the hearing of the said Application, I was referred to an Affidavit sworn on the 26th day of March 1999 by Mr Thomas Murtagh, the Network Construction Manager of the Applicant Company and the documents therein referred to and to an Affidavit sworn on the 19th day of July 1999 by Mr Thomas McCartan, an elected representative of the Respondent Council, and the documents therein referred to and I heard submissions from Counsel on behalf of each of the Parties.

The Facts
8

a 1 (a) By Order dated the 23rd day of June 1998, the Respondent granted to the Applicant planning permission bearing the Register Reference Number P/ 13655 for a development comprising the erection of a 32 metre telecommunications support structure and antennae, associated containerised equipment, shelter and associated development works at Tully, Ballyinamore, Co Leitrim.

9

(b) the said order was granted pursuant to the decision of the County Manager of the Respondent Council.

10

2. On the 28th day of July 1998, notification of the granting of the planning permission aforesaid issued to the Applicant.

11

3. By resolution of the elected members of the Respondent Council passed on the 1st day of March 1999, at a special meeting of the said members, it was decided to revoke the said grant of planningpermission.

12

4. By notice dated the 2nd day of March 1999, served on the Applicant pursuant to Section 30 of the Local Government (Planning and Development) Act 1963, as amended, the Respondent purported to revoke the said grant of planning permission. The reason furnished forthe purported revocation was in the following terms, namely; "Change of circumstances:- considerable fear, apprehension and opposition within the local community at Ballinamore as to the health implications, impact on property values, tourism and visual implications of the proposed development have been expressed to the elected members and this was not a matter that the elected members had been aware of at the date of the grant of permission".

13

5. At the special meeting aforesaid, of the elected members of the Respondent Council held on the 1st day of March 1999 at which it was decided to revoke the said grant of planning permission and in advance of taking that decision, the said members of the Respondent Council were advised that the Planning Officer thereof had certified that no change in circumstances relating to the proper planning and development of the area concerned had occurred since the granting of the saidpermission

14

6. The Applicant received no prior notification of the intention of the said elected members to consider the revocation of the said grant of planning permission at the special meeting aforesaid and the Respondent failed to afford the Applicant the opportunity to make submissions or representations as to whether or not the said permission should be revoked. Moreover, prior to taking the decision to revoke the said grant of planning permission, the said elected members made no inquiry to ascertain the circumstances which obtained at the time at which the said planning permission was granted for the purpose of ascertaining whether or not any change of circumstances had occurredsince that time and neither did they investigate, nor was it established that the fear, apprehension and opposition in the local community at Ballyinamore as to the health implications, impact on Property values, tourism and visual implications of the proposed development which allegedly had been expressed to the said elected members was, in fact,justified.

The Issues
15

1. On behalf of the Applicant it was submitted that the said resolution of the...

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