Geraghty v Minister for Local Government (No 1)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1976
• Docket Number: [1972 No. 3194 P.]
• Date: 01 January 1976

High Court

Supreme Court

[1972 No. 3194 P.]

Geraghty v. Minister for Local Government

Susan Geraghty

Plaintiff

and

The Minister for Local Government

Defendant

Local government - Planning - Appeal - Oral hearing by nominee of Minister of State - Nominee's report to Minister - Minister not exercising executive function when deciding appeal - Additional material considered by Minister - Natural justice - Local Government (Planning and Development) Act, 1963 (Appeals and References) Regulations, 1964 (S.I. No. 216 of 1964), arts. 9, 19 - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 26, 82.

Plenary Summons.

The facts have been summarised in the head-note and they appear in the judgments, infra. Section 26, sub-s. 5 (a), of the Local Government (Planning and Development) Act, 1963, provided:—"Any person may, at any time before the expiration of the appropriate period, appeal to the Minister against a decision of a planning authority under this section." The powers and duties of the Minister for Local Government under s. 26, sub-s. 5, of the Act of 1963 were delegated to Liam Cunningham (parliamentary secretary to the Minister) by the Local Government (Delegation of Ministerial Functions) Order, 1970—S.I. No. 109—and see now the Local Government (Planning and Development) Act, 1976.

Article 3 of the Local Government (Planning and Development) Act, 1963 (Appeals and References) Regulations, 1964, provides that an appeal to the Minister for Local Government under the Local Government (Planning and Development) Act, 1963, shall be made in writing and shall state the subject matter of the appeal and the grounds of appeal. Article 10 of the said regulations allows any party to an appeal to request an oral hearing and requires the Minister to give notice of the time and place of the opening of the oral hearing to the parties to the appeal. Article 14 empowers the Minister to direct that an oral hearing be held of an appeal although a request for an oral hearing has not been made by any party to the appeal or, if made, has been withdrawn. Article 15 provides that an oral hearing"shall be conducted by a person appointed for that purpose by the Minister."Sub-article 3 of article 16 provides that an oral hearing shall not be reopened, unless the Minister otherwise directs, after "the report thereon has been submitted to the Minister." Article 19 of the said regulations provides:—"After an oral hearing, the person who conducted the hearing shall furnish a report thereon to the Minister and the Minister shall consider the report before giving his decision on the appeal or reference."

Article 9 of the regulations provide:—"Considerations relating to the proper planning and development of the area which are taken into account by the Minister in determining an appeal may include matters other than those put before him by the parties to the appeal where such considerations have been brought to the notice of the said parties and the said parties have been afforded an opportunity to make observations thereon to the Minister or, in the case of an oral hearing, to the person conducting the hearing."

Article 40, s. 3, of the Constitution provides:—

"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

The plaintiff sought an order declaring that the decision made by the parliamentary secretary to the defendant Minister had been made ultra vires and was void. The plaintiff's action was tried by O'Higgins J. on the 24-26th June, 1974.

The defendant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 28th April, 1975.

Section 26, sub-s. 5, of the Act of 1963 enabled an applicant for outline planning permission to appeal to the Minister for Local Government against a refusal of a local planning authority to grant the applicant permission to develop his lands. Section 82 of the Act provided for regulations to be made for an oral hearing of such appeal to be held by a person appointed by the Minister, and for the furnishing by such person to the Minister of a report on the oral hearing of the appeal. Section 26, sub-s. 5, also provided that the Minister should determine the application as if it had been made to him in the first instance. Pursuant to an order made by the Government in 1970, the powers and duties of the Minister in deciding such appeals were delegated to his parliamentary secretary.

Having been refused outline planning permission to develop her lands by the local planning authority, the plaintiff appealed against that decision to the defendant Minister. The oral hearing of the appeal was held by an officer of the Department of Local Government who had been nominated for that purpose by the Minister. The nominee completed a report on the hearing of the planning appeal and recommended that the plaintiff's application be refused. The nominee's report was submitted to his superiors in the Department of Local Government and they made various suggestions and comments on the report, including a suggestion that other reasons be given for refusing the application and a suggestion that the application be circumvented by the exercise of the Minister's power to require a variation in the relevant development plan. Ultimately, the parliamentary secretary to the defendant Minister refused the plaintiff's planning appeal. The plaintiff brought an action in the High Court and claimed a declaration that the decision refusing the planning appeal had been made ultra vires and was void.

Held by O'Higgins J., in giving judgment for the plaintiff, and affirmed by the Supreme Court (Walsh, Budd, Henchy, Griffin and Gannon JJ.), 1, that the defendant Minister was not exercising an executive power when he decided a planning appeal pursuant to s. 26, sub-s. 5, of the Act of 1963.

Murphy v. Corporation of Dublin [1972] I.R. 215 applied.

2. That the decision to dismiss the plaintiff's planning appeal had been made ultra vires because factors which had not been mentioned at the oral hearing of the planning appeal, and which the plaintiff had no opportunity to controvert, had been considered in reaching that decision.

Cur. adv. vult.

O'Higgins J. 12th July, 1974

In this action the plaintiff seeks a number of declarations against the defendant, the effect of which would be to have declared null and void a decision by the defendant dated the 23rd October, 1972, under the provisions of the Local Government (Planning and Development) Act, 1963, whereby the plaintiff was refused outline planning permission in respect of certain of her lands. On the 3rd October, 1969, the plaintiff sought from the Dublin county council (as the planning authority) outline planning permission for a housing development on her lands at Fosterstown North in the county of Dublin. The application was made under the provisions of s. 26 of the said Act. It is to be noted that the granting or refusing of such permission is an executive function of the county council under the provisions of the County Management Acts. 1940-1955, and is discharged by the council's planning officers.

On the 28th November, 1969, the plaintiff's application was refused. Under the provisions of s. 26, sub-s. 8, of the Act of 1963, where planning permission is refused or granted subject to conditions, whether on the original application or on appeal, the notification of such decision must comprise a statement specifying the reasons for the refusal or the imposition of conditions. In accordance with this provision the notification of the decision refusing the plaintiff's application stated the following reasons:—

"(1) Development of this property for housing purposes would result in the generation of extensive additional traffic on to an already heavily-trafficked main arterial road and would result in a serious traffic hazard on this stretch of the T 1.

(2) There are no water supply or sewerage facilities available to serve the proposal.

(3) The proposed development would be premature by reason of the said existing deficiency in the provision of water and sewerage facilities and the period within which such deficiency may reasonably be expected to be made good.

(4) The Department of Transport and Power have said that the proposed development would interfere with the proper development and operation of the airport.

(5) The occupants of any houses erected on this property would suffer severe loss of amenity due to aircraft noise which would be significant in the future."

From this decision the plaintiff appealed to the defendant under the provisions of s. 26. sub-s. 5 (a), of the Act of 1963 and asked for an oral hearing of her appeal. An oral hearing was accordingly directed and was held on the 14th January, 1971, by Mr. J. S. Conway, a person appointed by the defendant to hold the oral hearing. At this hearing the plaintiff, the planning authority and the Department of Transport and Power were represented and called witnesses. The defendant's decision refusing the appeal was conveyed to the plaintiff by notice dated the 23rd October, 1972. Again in accordance with s. 26, sub-s. 8, of the Act, the notice stated the reasons for the decision to be as follows:—

"(1) There are no piped sewerage facilities available in the area to serve the proposed houses, the development would accordingly be premature having regard to this deficiency in the provision of sewerage facilities and the period within which such deficiency may reasonably be expected to be made good.

(2) The site is so located on the flight path of Dublin airport and its development for housing would interfere with the proper...