O'Flynn Construction Company Ltd v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date12 November 1999
Neutral Citation[1999] IEHC 259
CourtHigh Court
Docket Number[1999 No. 150 J.R.]
Date12 November 1999

[1999] IEHC 259

THE HIGH COURT

No. 150 J.R. 1999
O'FLYNN CONSTRUCTION COMPANY LTD v. AN BORD PLEANALA
JUDICIAL REVIEW

BETWEEN

O'FLYNN CONSTRUCTION COMPANY LIMITED
APPLICANT

AND

AN BORD PLEANALA
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE 1982 SI 264/1982

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S7

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE (SHOPPING) 1998 SI 193/1998 PARA 1

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE (SHOPPING) 1998 SI 193/1998 PARA 1(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE (SHOPPING) 1998 SI 193/1998 PARA 1(c)

INTERPRETATION ACT 1937 S19(2)

INTERPRETATION ACT 1937 S22(1)(b)

INTERPRETATION ACT 1937 S22(1)(e)

MCKONE ESTATES LTD V DUBLIN CO COUNCIL 1995 2 ILRM 283

INTERPRETATION ACT 1937 S22(1)(c)

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

Synopsis

Planning

Planning; judicial review of decision of An Bord Pleanala; respondent dismissed applicant's appeal on ground that proposed development would materially contravene an objective set out in the development plan; respondent in setting out reasons for refusal of permission referred specifically to terms of the Local Government (Planning and Development) General Policy Directive, 1982 (SI No. 264 of 1982); respondent conceded that Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (SI No. 193 of 1998) did not apply to applicant's application; respondent's inspector had taken the view that application for permission could be severed and that permission for one part of the proposed development ought to be granted; respondent however decided that application was for one integrated development; whether 1982 directive had been revoked at time of respondent's decision and there was no saving provision which kept the directive alive for the purposes of the appeal; whether notwithstanding its revocation the 1982 directive continued to apply to this application pursuant to provisions of the Interpretation Act, 1937; whether decision of respondent to treat the application as being for one integrated development was irrational; Local Government (Planning and Development) General Policy Directive, 1982 (SI No. 264 of 1982); Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (SI No. 193 of 1998).

Held: 1982 directive was revoked on 10th June, 1998, and the 1998 directive replaced it on that date; 1982 directive did not continue to apply to this application pursuant to provisions of the Interpretation Act, 1937; respondent did not act irrationally in making its decision; order of certiorari granted and matter remitted to respondent for redetermination.

O'Flynn Construction Company Ltd. v. An Bord Pleanala - High Court: Geoghegan J. - 12/11/1999 - [2000] 1 IR 497

The 1982 General Policy Directive was revoked on the coming into effect of the 1998 General Policy Directive (Shopping) on 10 June 1998 and therefore neither Directive was in force at the time of the determination of the applicant's appeal and the applicant was entitled to relief on that ground. However, it was an unsustainable argument to suggest that the respondent was bound by the inspector's recommendation of severance and it could not be regarded as unreasonable to regard the application as integrated.

1

Judgment of Mr. Justice Geoghegandelivered the 12th day of November, 1999.

2

This is an application brought pursuant to leave for Judicial Review in the form of an Order of Certiorari, a number of Declarations and an Order of Mandamus requiring the Respondent to consider a particular planning appeal in accordance with law.

3

Leave was granted on grounds (e) A-J in the Applicant's grounding statement but essentially the grounds can be reduced to three and they are as follows:-

4

1. It was stated in the decision of the Respondent dismissing the Applicant's appeal that the intended development consisting of a proposed shopping centre and retail warehousing would contravene materially an objective set out in the currentdevelopment plan. It had, however, been accepted by all parties at the time of the oral hearing before the Respondent's inspector that the development plan had been amended on 12th October, 1998 so as to accommodate the proposed development.

5

2. The decision of the Respondent dated 24th February, 1999 in setting out reasons for refusal of the permission referred specifically to regard having been taken to the terms of the Local Government (Planning and Development) General Policy Directive, 1982 (S.I. No. 264 of 1982). The Applicant argues that at the time of the decision that directive had been revoked and that there was no saving provision in the statutory instrument itself or in the parent Act or in the Interpretation Act which kept the directive alive for the purposes of this appeal.

6

3. The Respondent's inspector had taken the view that the application for permission could be severed and that while permission for part of the development should be refused, permission for a different part ought to be granted. The Respondent, however, decided that the application was for one integrated development and that it should be treated as such by the Respondent with the result that permission was refused for the entire development. It is argued on behalf of the Applicant that this decision was irrational and wrong inlaw.

7

The Respondent delivered a Statement of Opposition in which it admitted the first ground for relief but disputed the two other grounds. The Respondent was willing to pay the Applicant the costs of the Judicial Review proceedings up to the date of the Respondent's admission provided that the proceedings were then discontinued. There would of course bean Order of Certiorari and the matter would be referred back to the Board. The Applicant, however, wanted the other two points decided also and it was accepted that on risk as to costs the application would proceed on that basis.

8

I turn now therefore to considering the point raised by the Applicant in relation to the 1982 Statutory Instrument. That directive was made by the Minister for the Environment on 10th August, 1982 in pursuance of powers conferred on the Minister by Section 7 of the Local Government (Planning and Development) Act, 1982.It laid down guidelines in relation to planning applications in respect of retail shopping developments. On 9th June, 1998 the Minister for the Environment and Local Government made a new replacement statutory instrument entitled the Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (S.I. No. 193 of 1998). Paragraph 1 of this new directive provided at sub-paragraphs (b) and (c) as follows:-

9

a "(b) This directive shall come into operation on the 10th day...

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2 cases
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