O'Keeffe v an Bord Pleanála

 
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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 thejudgment and order of the High Court dated the 31st July 1990 in anaction brought by thePlaintiff for judicial review of a decision issued by the Board on the25th day of July 1988 to grant planning permission, pursuant to theLocal Government Planning and Development Acts 1973 to 1983for the erection of a long-wave transmitting station and ancillaryservices 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 onthe grounds that the order made by the Board was ultra viresbecause the decision of the Planning Authority for the County of Meathto grant permission, against which objectors had brought an appeal tothe Board, was itself invalid and made ultra vires. For thatreason, the County Manager for the County of Meath was added by theorder of the Court as a party to those proceedings. The proceedings,however, were not, at the stage when liberty to issue proceedings forjudicial 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 effectoffered 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 wasmade by Johnson J. in the High Court on the 7th September 1988, and itdirected that the application for judicial review should be made byoriginating plenary summons.

5

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

6

An order for discovery against the Board was made and an affidavit ofdiscovery was filed. When the matter came on for hearing in the HighCourt it appears clear from the transcript which was taken of thoseproceedings that no oral evidence was adduced nor was there anysubmission made to the Court as to theexistence of an agreed set of facts, or even of an agreed list or set ofdocuments which were taken to have been proved. All that can be safelysaid as a result of a consideration of the transcript in the High Courtis that it was apparently implicitly accepted by the parties appearingthere that certain documents which were opened to the learned trialJudge and in respect of which submissions were made on behalf of boththe Plaintiff and the Defendants, were admitted or agreed to be inevidence. Of these the material documents which were thus treatedconsisted of the report of the inspector appointed by the Board toconduct the oral hearing of the appeal in the planning application, thereport of the special expert seconded to that hearing which was annexedto the inspector's report, and documents concerning the actual making ofthe decision on appeal. On the hearing of the appeal, before this Courtit was accepted by all the parties concerned that the Court simply hadto 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 wasto the following effect.

8

1. He rejected the claim that the order made by the PlanningAuthority on the application to it constituting a decision to grantpermission, subject to conditions, was a nullity to the extent that itin 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, andthat issue, therefore, did not arise before this Court.

9

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

10

In arriving at that conclusion, the learned trial Judge stated that theonly rational explanation of how the Board could have reached theconclusion it did on the planning appeal before it in this case was thatit must have taken into consideration matters other than, and irrelevantto, 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 casewas procedurally bad and, therefore, void by reason

12

(1) of the failure of the Board to state adequately reasons for itsdecision, 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 thehearing of the appeal Radio Tara Limited applied to be added as a partyfor the purpose of the appeal.

15

This Court concluded that in the interests of justice it was necessarythat Radio Tara who would be very clearly affected by the result of theappeal should be added as a party to it, and they were accordingly givenliberty to become a party, subject to the restriction that they shouldnot be entitled to raise any additional ground of opposition to thePlaintiff's claim which had not been raised by the Defendants in theHigh 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 materialbefore the Board upon which it reached its decision and, in default ofhis so establishing, having regard to the decision of this Court in Sharpe v. The Dublin City Manager, the Court could not reach aconclusion that the decision was irrational or contrary to all thematerial or evidence before the Board and that the Plaintiff's claim foran order quashing the decision upon this ground must, therefore,fail.

18

(b) That even if the Court should or could approach the decision ofthe Board upon the basis of the report of the inspector and theadditional and annexed report of the expert seconded to him that theCourt could not possibly conclude that the decision of An Bord Pleanalato grant planning permission, subject to the conditions which wereattached to it in their order was...

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