O'Keeffe v an Bord Pleanála

CourtSupreme Court
Docket Number[1988 No. 8635P; S.C. Nos. 310 and 355 of 1990]
JudgeFINLAY C.J., McCarthy J.
Judgment Date01 Jan 1993
JurisdictionIreland
Neutral Citation1991 WJSC-SC 1137

1991 WJSC-SC 1137

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

Lynch J.

310-355/90
O'KEEFFE v. BORD PLEANALA
DENIS O'KEEFFE
Plaintiff/
Respondent

and

AN BORD PLEANALA
Defendant/
Appellant

AND

FRANCIS O'BRIEN
Defendant
And by Order of the Court
RADIO TARA LIMITED

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1983

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

SHARPE V DUBLIN CITY MANAGER 1989 IR 701 1989 ILRM 565

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

CHIEF CONSTABLE OF NORTH WALES POLICE V EVANS 1982 1 WLR 1155

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(8)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS SI 65/1977 REG 48

KENNY, STATE V BORD PLEANALA UNREP SUPREME 20.12.84

RSC O.18 r20

Synopsis:

EVIDENCE

Onus of proof

Tribunal - Decision - Annulment - Grounds - Irrationality - Principles applicable - Applicant to prove material on which tribunal acted - (310,355/90 - Supreme Court - 15/2/91)1993 1 1R 64

|O'Keeffe v. An Bord Pleanala|

JUDICIAL REVIEW

Certiorari

Tribunal - Decision - Annulment - Grounds - Irrationality - Principles applicable - Proof of material on which tribunal acted - (310,355/90 - Supreme Court - 15/2/91) - [1993] 1 I.R. 64

|O'Keeffe v. An Bord Pleanala|

PLANNING

Appeal

Decision - Irrationality - Proof - Applicant for order quashing decision - Applicant to prove material on which tribunal acted - (310,355/90 - Supreme Court - 15/2/91) - 1993 1 IR 64 1992 ILRM 237

|O'Keeffe v. An Bord Pleanala|

PRACTICE

Parties

Joinder - Certiorari - Tribunal - Decision - Annulment sought by applicant - Stranger to proceedings affected by relief sought - Stranger to be joined as party - (310,355/90 - Supreme Court - 15/2/91) - [1993] 1 I.R. 64 - [1992] ILRM 237

|O'Keefe v. An Bord Pleanala|

TRIBUNAL

Decision

Reasons - Disclosure - Sufficiency - Judicial review - Certiorari - Remedy - Scope - Principles applicable - Decision impugned as irrational - Evidence - Onus of proof - Applicant to prove all material used by tribunal in making decision - Duty of tribunal to make and retain minutes of hearing - Planning permission granted by appeal board despite advice of experts - Joinder of party affected by annulment of decision - Local Government (Planning and Development) Regulations, 1977, article 48 - City and County Management (Amendment) Act, 1955, s. 4 - Local Government (Planning and Development) Act, 1963, s. 26 - (310,355/90 - Supreme Court - 15/2/91) - 1993 1 IR 64 - 1992 ILRM 237

|O'Keeffe v. An Bord Pleanala|

1

JUDGMENT delivered on the 15th day of February 1991by FINLAY C.J. [Griffin J. Hedeman J. Lynch J. agr]

2

This is an appeal brought by An Bord Pleanala (the Board) against the judgment and order of the High Court dated the 31st July 1990 in an action brought by thePlaintiff for judicial review of a decision issued by the Board on the 25th day of July 1988 to grant planning permission, pursuant to the Local Government Planning and Development Acts 1973 to 1983for the erection of a long-wave transmitting station and ancillary services at Clarkestown in the County of Meath to Radio TaraLimited.

The proceedings in the High Court
3

The Plaintiff originally sought judicial review inter alia on the grounds that the order made by the Board was ultra viresbecause the decision of the Planning Authority for the County of Meath to grant permission, against which objectors had brought an appeal to the Board, was itself invalid and made ultra vires. For that reason, the County Manager for the County of Meath was added by the order of the Court as a party to those proceedings. The proceedings, however, were not, at the stage when liberty to issue proceedings for judicial review was granted by the High Court, served on Radio Tara, although the Applicant's Solicitorinformed Radio Tara of the existence of the proceedings and in effect offered them the opportunity to apply, pursuant to the Rules of Court, to be added as a party. That they decided not to do.

4

The order giving liberty to issue proceedings for judicial review was made by Johnson J. in the High Court on the 7th September 1988, and it directed that the application for judicial review should be made by originating plenary summons.

5

A summons was accordingly issued against the Board and against the County Manager, and it was followed by a statement of claim and defences were filed on behalf of each of the two Defendants.

6

An order for discovery against the Board was made and an affidavit of discovery was filed. When the matter came on for hearing in the High Court it appears clear from the transcript which was taken of those proceedings that no oral evidence was adduced nor was there any submission made to the Court as to theexistence of an agreed set of facts, or even of an agreed list or set of documents which were taken to have been proved. All that can be safely said as a result of a consideration of the transcript in the High Court is that it was apparently implicitly accepted by the parties appearing there that certain documents which were opened to the learned trial Judge and in respect of which submissions were made on behalf of both the Plaintiff and the Defendants, were admitted or agreed to be in evidence. Of these the material documents which were thus treated consisted of the report of the inspector appointed by the Board to conduct the oral hearing of the appeal in the planning application, the report of the special expert seconded to that hearing which was annexed to the inspector's report, and documents concerning the actual making of the decision on appeal. On the hearing of the appeal, before this Court it was accepted by all the parties concerned that the Court simply had to deal with the matter on thebasis that these were the matters of evidence in the High Court.

Decision of the High Court
7

In short, the decision of the learned trial Judge in the High Court was to the following effect.

8

1. He rejected the claim that the order made by the Planning Authority on the application to it constituting a decision to grant permission, subject to conditions, was a nullity to the extent that it in any way invalidated a decision made by the Board on appeal from it. Against that decision, no appeal was brought by any of the parties, and that issue, therefore, did not arise before this Court.

9

2. The learned trial Judge decided that the decision made by the Board on the planning appeal, having regard to the report which was before it from the Inspector, and to the expert's subsidiary report annexed thereto, was so irrational and so in breach of common sense and reason as to be a nullity and to be quashed pursuant tothe principles laid down by this Court in The State (Keegan) v. The Stardust Compensation Tribunal 1986 IR, 642.

10

In arriving at that conclusion, the learned trial Judge stated that the only rational explanation of how the Board could have reached the conclusion it did on the planning appeal before it in this case was that it must have taken into consideration matters other than, and irrelevant to, the proper planning and development of the area.

11

3. Relying on the principles laid down by this Court in Sharpe v. The Dublin City Manager 1989 ILRM, and The State (Creedon) v. The Criminal Injuries Compensation Tribunal 1988 IR, the learned trial Judge held that the decision of the Board in this case was procedurally bad and, therefore, void by reason

12

(1) of the failure of the Board to state adequately reasons for its decision, and

13

(2) the failure of the Board to keep minutes of thedeliberations leading to its decision.

14

Against each of these findings of invalidity in the Order made by them, the Board appealed to this Court on a number of grounds. Prior to the hearing of the appeal Radio Tara Limited applied to be added as a party for the purpose of the appeal.

15

This Court concluded that in the interests of justice it was necessary that Radio Tara who would be very clearly affected by the result of the appeal should be added as a party to it, and they were accordingly given liberty to become a party, subject to the restriction that they should not be entitled to raise any additional ground of opposition to the Plaintiff's claim which had not been raised by the Defendants in the High Court.

The submissions on this appeal
The Appellant's submissions
16

In relation to the first finding made by the learned trial Judge of "an irrational decision" by theBoard, the submission of the Board and of Radio Tara was this:

17

(a) The onus was on the Plaintiff to establish in full the material before the Board upon which it reached its decision and, in default of his so establishing, having regard to the decision of this Court in Sharpe v. The Dublin City Manager, the Court could not reach a conclusion that the decision was irrational or contrary to all the material or evidence before the Board and that the Plaintiff's claim for an order quashing the decision upon this ground must, therefore,fail.

18

(b) That even if the Court should or could approach the decision of the Board upon the basis of the report of the inspector and the additional and annexed report of the expert seconded to him that the Court could not possibly conclude that the decision of An Bord Pleanala to grant planning permission, subject to the conditions which were attached to it in their order was irrational. It was contended that a perusal of these two documentsclearly indicated that they of themselves (even without any other material) presented to the Board two clear points of view, from a planning perspective, in respect of this application and that it was for the Board to decide between those two points of view, balancing the...

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