Galway Corporation, Keogh v (Nos. 1 & 2)

• Jurisdiction: Ireland
• Judgment Date: 03 March 1995
• Date: 03 March 1995
• Docket Number: [116 JR/1994 and 51 JR/1995]
• Court: High Court

Keogh v. Galway Corporation (Nos. 1 & 2)

Mark Keogh and Others

Applicants

and

The Mayor, Aldermen and Burgesses of the County Borough of Galway, Respondents (Nos. 1 & 2)

[116 JR/1994 and 51 JR/1995]

High Court

High Court

Planning - Development plan - Material contravention - Development proposed by planning authority on the alleged authority of plan - Specified objectives in plan concerning halting sites - Decision to provide halting site consistent with general objectives only - Whether decision in material contravention of plan - Right of public to be notified and heard in respect of development proposed under plan - Subsequent proposals to vary development plan - Halting sites proposed for 10 zones - Internal advice of officer recommending reduction to 7 zones - Advice incorporated in draft variations - Whether change to draft variations a "material alteration" - Whether applicants deprived of opportunity of making submissions by failure to publish notice in Iris Oifigiúil and in local newspaper - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 21 and 21A, sub-s. 2, and s. 39, sub-section 2.

Judicial review - Ultra vires - Material contravention of development plan - Right of public to be notified and heard in respect of developments proposed under plan - Denial of right - Whether decision of planning authority properly reviewable on grounds of lack of authority or reasonableness - Subsequent proposal to vary development plan - Incorporation of internal advice in draft variations without compliance with publication procedure prescribed by statute - Whether such incorporation a reasonable non-material alteration - Power of court to make a determination in lieu of the local authority where nature of alteration never considered - Test of reasonableness - Local Government (Planning and Development) Act, 1963 (No. 28), s. 21A.

Section 39, sub-s. 2 of the Local Government (Planning and Development) Act, 1963, provides:—

"The corporation of a county or other borough shall not effect any development in such borough which contravenes materially the development plan."

Part III of the Act of 1963, deals with "Development Plans" and requires, inter alia, that the public should be given notice of proposed development plans and an opportunity of making representations thereon.

In the respondents' development plan special provision was made for the creation of traveller halting sites at four named locations. Elsewhere, the plan permitted the modification or deletion of particular plan objectives and the initiation of new works which might become necessary even though not included in the specific objectives of the plan.

The respondents decided to develop a halting site at a location which was not of the four sites specified in the development plan. Internal advice to the respondent suggested that the specified objectives of the respondents' development plan did not amount to an exhaustive list of all development authorised by the plan and, further, that the development proposed in the present case would be consistent with the general planning policies and enabling provisions of the plan.

The applicants sought judicial review of the respondents' decision. They claimed that it materially contravened the development plan in that it purported to sanction a development by reference to the general and implied terms of that plan. The complaint was that the applicants had not been accorded rights of notification and hearing in respect of this proposal prior to the adoption of the plan. The denial of these rights arose because the applicants had been led to believe that the express terms of the plan were exhaustive on the issue of halting sites for travellers.

Held by Carney J., in granting relief, 1, that it was central to the scheme of Part III of the Local Government (Planning and Development) Act, 1963, that the applicants be given notice of any developments proposed under a development plan which might affect them in a substantial way and also an opportunity of stating their case in relation thereto.

Finn v. Bray U.D.C. [1969] I.R. 169 and dicta of McCarthy J. in Attorney General (McGarry) v. Sligo County Council[1991] 1 I.R. 99 considered.

2. That the applicants were entitled to assume that they were fully on notice of the respondents' intentions regarding halting sites in their area by virtue of the specified objectives on that matter in the development plan.

3. That the decision of the respondents in proposing the present development was in material contravention of their development plan in that it by-passed the mandatory consultation process prescribed for the formulation of development plans under Part III of the Local Government (Planning and Development) Act, 1963.

The respondents purported to replace the paragraph, permitting the provision of designated halting sites, with one which would allow for the provision of such sites in all of the ten planning zones covered by the development plan. Some time after the applicants had made their submissions on the draft variations but before the respondents had formally resolved to adopt those variations as part of the plan, one of the respondents' officers advised that it would be in the interests of good planning if the draft variations covered seven rather than ten zones as originally proposed. The respondents unilaterally accepted this advice and proceeded to adopt the proposed variations in their altered form.

The applicants applied to have the resolution of the respondents, adopting the variations to the development plan, quashed by order of certiorari. They submitted that the accepted advice of the respondents' officer amounted to a material alteration of the original draft variations and as such required notice of the alleged material alteration in Iris Oifigiúil and in a local newspaper. The respondents argued that the applicants had been accorded adequate rights of audience in the circumstances, and that any decision to accept the advice of one of their officers could only be judicially reviewed on the ground of unreasonableness.

Held by Morris J., in granting relief, 1, that the respondents, having failed altogether to consider whether the advice of their officer amounted to a "material alteration" under s. 21A of the Local Government (Planning and Development) Act, 1963, were precluded from raising the argument that their acceptance of that advice was reviewable only on grounds of lack of reasonableness.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, O'Keeffe v. An Bord Pleanála[1993] 1 I.R. 39 and The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642 considered.

2. That the court, being entitled in the circumstances to consider the matter de novo, was of the view that the changes proposed by the respondents' officer amounted to a "material alteration" of the proposed draft variations within the meaning of s. 21A of the Local Government (Planning and Development) Act, 1963, having regard to the planning significance of reducing the number of designated zones for the location of halting sites, and to the failure to accord to the applicants any opportunity of making submissions on that particular issue.

3. That the respondents had failed to follow the necessary publication procedures prescribed under s. 21A of the Local Government (Planning and Development) Act, ]963, and, accordingly, their decision adopting the amended draft variation as part of the development plan was ultra vires.

Cases mentioned in this report:—

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223; [1947] 2 All E.R. 680.

Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99; [1989] I.L.R.M. 768.

Finn v. Bray U.D.C. [1969] I.R. 169.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

Judicial review.

The facts have been summarised in the headnote and appear fully in the judgments of Carney and Morris JJ., infra.

The High Court (Flood J.) granted the applicants leave to apply for relief by way of judicial review on the 21st March, 1994. In the statement grounding their application, the applicants sought certiorari of the respondents' decision, a declaration that the proposed development was in material contravention of the Galway County Borough Plan 1991, an injunction restraining the proposed development from going ahead, damages and further relief.

The application was heard by the High Court (Carney J.) on the 27th July, 1994.

On the 9th January, 1995, the respondents purported to pass a resolution altering the development plan. On the 13th February, 1995, the applicants were granted leave to apply for relief by way of judicial review by the High Court (Keane J.). Interim (Keane J.) and interlocutory (Morris J.) injunctions were also granted on the 13th February and 3rd March...