KEANE & NAUGHTON v Bord Pleanála & COMMISSIONERS of IRISH LIGHTS

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 22 April 1998
• Neutral Citation: 2004 WJSC-SC 5650
• Docket Number: 29/97
• Court: Supreme Court
• Date: 22 April 1998

2004 WJSC-SC 5650

THE SUPREME COURT

Hamilton, C.J.

Barrington, J.

Keane, J.

29/97

KEANE & NAUGHTON v. BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS

BETWEEN

PATRICK KEANE AND PATRICK NAUGHTON

Appellants

AND

AN BORD PLEANALA AND THE COMMISSIONERS OF IRISH LIGHTS

Respondent

AND

CLARE COUNTY COUNCIL, PAUL CONSIDINE, VALERIE CONSIDINE AND THE MINISTER FOR THE MARINE

Notice Parties

Citations:

MERCHANT SHIPPING ACT 1894

KEANE V BORD PLEANALA 1997 1 IR 184

MERCHANT SHIPPING (COMMISSIONERS OF IRISH LIGHTS) ACT 1997 S3

FRESCATI ESTATES LTD V WALKER 1975 IR 177

BUILDING CONTROL ACT 1990

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S83

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(a)

SCOTT V BORD PLEANALA 1995 1 ILRM 424

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1993 ILRM 665

FITZGERALD, STATE V BORD PLEANALA 1985 ILRM 117

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

FLANAGAN V GALWAY CITY & COUNTY MANAGER 1990 2 IR 66

TOWN & COUNTY PLANNING ACT 1990 S70(2) (UK)

GREAT PORTLAND ESTATES PLC V WESTMINSTER CITY COUNCIL 1984 3 AER 744

O'KEEFFE V BORD PLEANALA 1993 1 IR 71

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S13(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S7(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S5

CIE, STATE V BORD PLEANALA UNREP SUPREME 12.12.1984 1984/6/1813

LOCAL GOVT ACT 1991 S7

GLENCAR EXPLORATIONS PLC V MAYO CO COUNCIL 1993 2 IR 237

CONSTITUTION ART 43.2.2

CENTRAL DUBLIN DEVELOPMENT ASSOC V AG 1975 109 ILTR 69

EAST DONEGAL CO-OP LTD V AG 1970 IR 317

DREHER V IRISH LAND COMMISSION 1984 ILRM 94

O'CALLAGHAN v COMMISSIONER OF PUBLIC WORKS 1985 ILRM 364

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S7

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S1(13)

BROWNE V DONEGAL CO COUNCIL 1980 IR 132

LOCAL GOVT ACT 1991 S7(1)

Synopsis

Planning

Planning permission; criteria; radio mast planned for international marine navigation; permission granted by respondent; whether permission could be granted to body unable to carry out plan; whether respondent exceeded jurisdiction in taking various issues into account; whether effects outside local authority area relevant; whether only relevant if deleterious; whether respondent entitled to consider national policy or the common good Held: Respondent entitled and obliged to take such factors into account Keane v. An Bord Pleanala - Supreme Court: Hamilton C.J., Barrington, J., Keane J. - 22/04/1998 - [1998] 2 ILRM 241

1 22nd day of April, 1998 byKeane J.

Keane J.

Introduction

2 This is the latest, and it is to be hoped the final, instalment in a protracted legal battle arising out of the proposal to erect a radio mast designed to be an aid to navigation at Feeard, County Clare.

3 The factual background can be briefly summarised at this point. The second named Respondents (hereafter "the Commissioners") are a statutory body established by legislation in the last century to exercise control over light houses, buoys or beacons. Under the Merchant Shipping Act, 1894, they were empowered to erect lighthouses, buoys or beacons and in the year 1994 they sought to avail of that power to erect the radio mast in question. The proposed mast was one of a series forming part of what was known as the "Loran C" system established as an aid to navigation in the North Atlantic Ocean and North West Europe by a number of countries, including Ireland.

4 Although the development was not one for which planning permission was required, the Commissioners (who, in the context of the development, were acting at all times as agents for the fourth named Notice Party (hereafter "the Minister")) applied for such permission. The application was refused by the first named Notice Party (hereafter "the County Council") and the Commissioners thereupon appealed to the first named Respondents, An Bord Pleanala. Following an oral hearing, the latter granted the permission sought subject to a number of conditions.

5 The Applicants then made two separate applications for leave to issue proceedings by way of judicial review. The first, which was granted by this court on appeal, sought to quash the decision of An Bord Pleanala to grant planning permission. The second sought a declaration that the erection of the radio mast was ultra vires the powers of the Commissioners and/or the Minister. That contention succeeded in the High Court and the decision of Murphy J. was upheld by a majority of this court (see Keane & Anor. v. An Bord Pleanala & Ors [1997] 1 IR 184).

6 The application for judicial review in respect of the decision of An Bord Pleanala came before Carroll J. in the High Court and, in a reserved judgment delivered on the 6th December 1996, she rejected the Applicants' claim. The decision of this court that neither the Commissioner nor the Minister had any power to carry out the development in question is not referred to in the judgment, presumably because, apart from any other considerations, counsel for the Applicants took the view that it could not be relied on, not being one of the grounds on which the court had granted leave to issue the judicial review proceedings.

The ultra vires issue

7 The Applicants appealed from the decision of Carroll J. to this court pursuant to leave granted by her under the relevant legislation. In the meantime, legislation has been enacted to deal with the lacunain the Commissioners' powers which had been found to exist in the earlier proceedings. Section 3 of the Merchant Shipping (Commissioners of Irish Lights) Act 1997provided that:

8 2 "(1) Subject to subsection (3), the Commissioners shall have, and be deemed always to have had, in relation to maritime navigation, power to

9 (a) operate without limit as to range a radio navigation system,

10 (b) erect or place any radio navigation system, with all requisite works, roads and appurtenances,

11 (c) maintain, repair, improve, alter, remove or vary the character of any radio navigation system and

12 (d) purchase or dispose of any land which may be necessary for the exercise of their powers under this subsection.

13 (2) The Commissioners shall have, and be deemed always to have had, all such incidental, supplemental, ancillary and consequential powers as, in the opinion of the Commissioners, are necessary or expedient for the purpose of the exercise by them of the powers aforesaid.

14 (3) Paragraphs (a) and (b) of subsection (1) of this Section shall not apply to the radio navigation system known as LORAN C within the meaning of the international agreement concerning the establishment and operation of the Civil LORAN C Navigation System in North West Europe and the North Atlantic done at Oslo on the 6th day of August 1992 until such date as the Minister may appoint by order, subject to any restrictions or conditions as the Minister may specify in the order.

15 (4) Where an order is proposed to be made under subsection (3) of this Section, a draft of the order shall be laid before each house of the Oireachtas and the order shall not be made unless a resolution approving of the draft is passed by each such house.

16 (5) If, because of any or all of its provisions, subsections (1) and (2) of this section would, but for the provisions of this subsection conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect."

17 At the time of the hearing of the appeal in this court, no order had been made by the Minister under subsection (3) above. Although the matter had not been raised in the notice of appeal from the decision in the High Court or in the written submissions lodged on behalf of the Applicants, the court invited counsel to make submissions as to the legal consequences of the development being ultra vires until such time as the necessary resolutions were passed under subsection (4) and an order was made by the Minister under subsection (3).

18 On behalf of the Applicants, Mr. Iarflaith O'Neill S.C. submitted that it was clear from the decision of this court in Frescati Estates Limited -v- Walker [1975] IR 177 that neither a planning authority nor An Bord Pleanala had any jurisdiction to grant planning permission to an applicant who was incapable in law of carrying out the development. On behalf of the Commissioners, Mr. Sreenan S.C. submitted that the decision in that case went no further than saying that an applicant for planning permission must have an estate or interest in the land which was the subject of the proposed development. It was clear from other provisions of the planning code that it might be necessary for an applicant, such as the Commissioners, to obtain other consents before proceeding with the authorised development.

19 In many cases, including the present, a person who has been granted planning permission will be unable to proceed with the development until he has obtained a relevant permission. This may arise either as a matter of public law or private law. For example, a company may apply for permission for the erection of a hotel including bar and restaurant facilities. In terms of planning law, the grant of permission will authorise, not merely the construction of the building, but also its use as a hotel, restaurant and bar. As a matter of public law, however, that use cannot lawfully commence until such time as the necessary licences are...