Grealish -v- An Bord Pleanala, [2006]IEHC 310 (2006)

Docket Number:2003 695 JR
Party Name:Grealish, An Bord Pleanala
Judge:O''Neill J.

THE HIGH COURTJUDICIAL REVIEW[2003 No. 695 JR]BETWEENTHOMAS GREALISHAPPLICANTANDAN BORD PLEANÁLARESPONDENTANDDUBLIN CITY COUNCILNOTICE PARTYJUDGMENT of O'Neill J. delivered on the 24th day of October, 2006The applicant in this case was on 2nd February, 2005, given leave by this court (Laffoy J.) to seek by way of judicial review an order of certiorari quashing the decision of the respondent made the 7th August, 2003, refusing permission on the appeal of the applicant for planning permission under Planning Register Reference 211/03 Appeal Ref. 29 S.202449, on the grounds that the respondent was in breach of the rules of natural and constitutional justice in failing to give any, or any adequate reasons for its said decision and that the said decision was unreasonable and irrational.Leave was granted by Laffoy J. in a reserved judgment delivered on the 2nd February, 2005, in which she set out fully the factual background and planning history relevant to this matter and there is no need to repeat the same here. The following passage from the learned judge's judgment sets the scene and poses the issues which have to be resolved on this application:"In my view standing alone the ground advanced by the applicant as to the inadequacy of the reason expressed for departing from the inspector's recommendation which was contended was a mere tautology of the refusal and did not advance in any way the explanation for the refusal is not sustainable. It is clear on the face of the record of the 2003 decision that the respondent considered two of the options open to it: to refuse in line with the decision of the planning authority; or, alternatively, to grant permission subject to conditions as recommended by the inspector. It decided to refuse permission, but it explained why it opted for this course: it considers that the proposed reduction in scale as recommended by the inspector, would not overcome its concerns, which it had outlined earlier - the scale and non-integration of the structure. That pithily tells the applicant and the world at large in terms which any intelligent person should be capable of understanding why the respondent departed from the recommendations of the inspector. In support of the submission that it was incumbent on the respondent, in giving reasons for its decision, to explain why it departed from the approach it adopted in its 1990 decision and its 1997 decision, the applicant referred to the following passage from Wade on Administrative Law, 8th Edition at p. 517:'There is no closed list of circumstances in which fairness require reasons to be given but the more important examples may be given here. First, decisions that appear aberrant without reasons have to be explained, so that it may be judged whether the aberration is real or apparent. Thus an award of abnormally low compensation to an unfairly dismissed prison officer by the Civil Service Appeal Board, which made it a rule not to give reasons, was quashed by the Court of Appeal, holding that natural justice demanded the giving of reasons both in deciding whether the dismissal was unfair and in assessing compensation, since other employers are entitled to appeal to industrial tribunals which are obliged by law to give reasons. Similarly, where the decision maker departs from a previously adopted policy (even if not published) fairness will require that departure to be explained. Thus a health authorities refusal, without giving reasons, to follow the policy of the National Health Service Executive to introduce a new (and expensive drug) was quashed.' When one puts the three decisions of the respondents side by side, a very stark departure from the conclusions reached in 1990 and 1997 is revealed in the 2003 decision. In 1990 and in 1997 the respondent concluded that the advertising structure would not seriously injure the visual amenities of the area and would not be contrary to proper planning and development of the area. In 2003 it concluded that the very same advertising structure would seriously injure the visual amenities of the area and would be contrary to proper planning and sustainable development of the area. Although it rationalised its conclusion in 2003 as to the impact of the structure on visual amenities on the basis that it would 'contribute to visual clutter' and of its scale and non-integration, in my view, this does not explain the apparent aberration. It is not apparent that these factors did not exist in 1990 or in 1997 and the evidence before a court suggests that they did. Against this background and the fact that in 1990 and in 1997 the respondent expressly overruled the findings of the planning authority as to the obtrusiveness and detrimental impact of the structure on the visual amenities of the area, how can the validity of the 2003 decision be assessed in accordance with the applicable judicial review norms without knowing the reasons for the volte-face?While it is undoubtedly open to the respondent to come to a different conclusion in 2003 to that reached in 1990 and 1997, in the unusual circumstances of this case, in my view, the ground as advanced by the applicant that the respondent should have given an explanation for departing from the stance it had adopted previously and set out the considerations which led to such departure and that the failure to do so is a breach of his rights, is a substantial ground." Thus, as is clear from the above and the statement of opposition and the submissions made, the issue which arises for determination is whether the respondents failed to give any, or any adequate reasons for the impugned decision of 2003 and specifically whether there was a failure to give reasons for its departure from the earlier decisions in 1990 and 1997 whereby planning approval was granted for the same development and whether any such alleged failure was a failure to give reasons for its decision as required by law, and finally, whether any such reasons as were given were tainted by irrationality in law.As the main issue in the case concerns the adequacy or otherwise of the reasons given, the relevant legal principles should be set out at this stage.In the case of Mulholland and Kinsella v. An Bord Pleanála and Others [2005] I.E.H.C. 306, Kelly J. reviewed the relevant English and Irish cases, i.e. O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, The State (Sweeney) v. The Minister for the Environment [1975] I.L.R.M. 35, R. (Ermakov) v. Westminster City Council [1996] 2 All E.R. 302, The London Residuary Body v. Secretary of State for the Environment, 58 J.P.L. 657, and Fairyhouse Club Limited v. An Bord Pleanála (Unreported, July 18th, 2001), and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at p. 76.The following passages from these cases are applicable to this case.From O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 (Murphy J.); "It is clear that the reasons furnished by the board (or by any other Tribunal) must be sufficient first to enable the courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it directed its mind adequately to the issues before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations." From The State (Sweeney) v. The Minister for the Environment [1979] I.L.R.M. 135 (Finlay P.); "To give to an applicant such information as may be necessary and appropriate for him, firstly, to consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and, secondly, to enable him to arm himself for the hearing of such an appeal."From R. (Ermakov) v. Westminster City Council [1996] 2 All E.R at 302, (Hutchinson L.J.):"It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the persons affected by the decisions may know why they have won or lost and in particular, may be able to judge whether the decision is valid and therefore unchallengeable or invalid, and therefore open to challenge. There are numerous authoritative statements to this effect...It is possible to state two propositions which the judgments in ex parte Graham support. 1. If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision itself would be unlawful; and2. The court should, at the very least, be circumspect about allowing...

To continue reading