P. & F. Sharpe Ltd v Dublin City and County Manager

• Jurisdiction: Ireland
• Judgment Date: 01 January 1989
• Date: 01 January 1989
• Docket Number: [1988 No. 39 JR]
• Court: Supreme Court

High Court

Supreme Court

[1988 No. 39 JR]

P. & F. Sharpe Ltd. v. Dublin City and County Manager

P. & F. Sharpe Limited and Grove Developments Limited, Applicants

and

Dublin City and County Manager and Dublin County Council

Respondents

Cases mentioned in this report:—

Smith v. East Elloe R.D.C. [1956] A.C. 736; [1956] 2 W.L.R. 888; [1956] 1 All E.R. 855; (1955) 106 L.J. 325.

Listowel U.D.C. v. McDonagh [1968] I.R. 312.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680; [1948] L.J.R. 190; (1947) 177 L.T. 641; 63 T.L.R. 623.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

The State (Keegan) v. The Stardust Compensation Tribunal [1986] I.R. 642.

Athlone Woollen Mills v. Athlone U.D.C. [1950] I.R. 1.

Hassett v. O'Loughlin (1943) 78 I.L.T.R. 47.

McDonald v. Feely and Dublin County Council (Unreported, High Court, Barrington J., 30th June, 1980).

The State (Kenny) v. An Bord Pleanála (Unreported, Supreme Court, 30th December, 1984).

The State (Stanford) v. Dun Laoghaire Corporation (Unreported, Supreme Court, 20th February, 1981).

Dwyer Nolan Developments Ltd. v. Dublin County Council [1986] I.R. 130.

Weir v. Dun Laoghaire Corporation [1983] I.R. 242; [1984] I.L.R.M. 113.

Additional cases cited to the High Court:—

Byrne v. Dublin County Council [1983] I.L.R.M. 213.

O'Neill v. Clare County Council [1983] I.L.R.M. 141.

C.I.E. v. Carroll and Wexford County Council [1986] I.L.R.M. 312.

Creedon v. Dublin Corporation [1984] I.R. 428; [1983] I.L.R.M. 339.

Dublin County Council v. Marren [1985] I.L.R.M. 593.

Local government - County Council - County manager - Resolution of County Council requiring county manager to carry out particular executive function of local authority - Whether county manager obliged to carry out resolution - Planning functions - Executive functions - Reserved functions - County Management Act, 1940 (No. 12), s. 17, sub-s. 1 - City and County Management (Amendment) Act, 1955 (No. 12), s. 4.

Judicial review - Certiorari - Statutory discretion vested in local authority - Whether decision unreasonable - Matters to take into consideration when reaching decision - Whether county manager obliged to comply with local authority's decision.

Local government - Planning - County development plan - Material contravention of development plan - Duties of county manager when proposed permission is in material contravention of development plan - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26, sub-s. 3 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 39.

Judicial review.

On the 22nd January, 1988, the county manager of Dublin County Council refused the applicants planning permission for a new road giving access from a site which the applicants were developing to an adjacent dual carriageway. On the 15th February, 1988, the applicants made an ex parte application to the High Court and obtained leave to apply by way of judicial review for an order of certiorariquashing the county manager's decision and an order of mandamus compelling the county manager to grant the permission sought.

The relevant portions of s. 4 of the City and County Management (Amendment) Act, 1955, provide as follows:—

Section 4, sub-s. 1 provides:—

"Subject to the provisions of this section, a local authority may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which the local authority or manager can lawfully do or effect to be done or effected in the performance of the executive functions of the local authority."

Section 4, sub-s. 8 provides:—

"Where a resolution is passed under and in accordance with this section, the manager shall, if and when and so far as money for the purpose is or has been provided, do or effect in accordance with the resolution the act, matter or thing specified in the resolution."

The provisions of s. 26, sub-s. 3 of the Local Government (Planning and Development) Act, 1963, as inserted by s. 39 of the Local Government (Planning and Development) Act, 1976, are set out in the judgment of Finlay C.J. infra.

The respondents appealed against the judgment and order of the High Court by notice of appeal dated the 26th July, 1988. The appeal was heard by the Supreme Court on the 29th and 30th November, 1988.

Section 4 of the City and County Management (Amendment) Act, 1955, enables a local authority by resolution to require a county manager to follow a particular course in the performance of an executive function of the local authority which is sepcifically mentioned in the resolution and obliges the county manager to act in accordance with the resolution.

Section 26, sub-s. 3 of the Local Government (Planning and Development) Act, 1963, allows a local authority to grant planning permission notwithstanding the fact that the proposed development is in material contravention of the development plan provided that certain conditions in relation to the giving of notice and the consideration of objections set out in s. 26, sub-s. 3 (a), (i), (ii), (iii) and (iv) are complied with. Section 26, sub-s. 3 (c) of the Act of 1963 provides that if a county manager is obliged pursuant to a resolution under s. 4 of the Act of 1955 to grant planning permission which would materially contravene the development plan, he shall within 7 days issue an order requiring that the provisions of s. 26, sub-s. 3 (a) of the Act of 1963 be complied with and the resolution under s. 4 of the Act of 1955 shall consequently become null and void.

The applicants applied to Dublin County Council for planning permission to build houses on land zoned for industrial use adjacent to a dual carriageway. The permission was granted subject to a condition that access to the site would be via two access roads and that there would be no direct access to the dual carriageway for safety reasons. The applicants subsequently applied for planning permission for a new road giving access to the site from the dual carriageway. In December, 1987, the elected members of the County Council gave notice of their intention to consider a proposal for a direction pursuant to s. 4 of the Act of 1955, directing the county manager to grant the permission sought. On the 11th January, 1988, at a meeting of the County Council at which reports of the county manager (incorporating the views of the county engineer and the roads department recommending refusal of the permission) were considered, the County Council, complying with the provisions of s. 4 of the Act of 1955, directed the county manager to grant the permission. The county manager refused to comply with this direction in the belief that he was being asked to do something which the local authority could not lawfully do in the performance of its executive functions. On the 22nd January, 1988, the county manager purported to issue a decision refusing the application.

The applicants sought judicial review by way of certiorari to quash the decision of the county manager refusing the application and mandamus to compel the grant of the permission. The County Council were joined as respondents by order of the High Court.

Held by O'Hanlon J., in granting the application, 1, that on the material available to the County Council, it was open to the Council to reach a valid decision in favour of granting planning permission to the applicants.

2. That the exercise of a discretionary power conferred by statute on an administrative authority may be challenged on a number of grounds, including, inter alia, the ground that the power is being exercised unreasonably.

Smith v. East Elloe R.D.C. [1956] A.C. 736 followed.

3. That the courts may find a decision made in the exercise of a statutory discretion invalid if no reasonable authority could have come to that decision, without requiring proof that the unreasonableness was overwhelming.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 not followed.

4. That, in the exercise of a statutory discretion, an administrative authority must be allowed considerable latitude and must be free to reach a decision contrary to professional advice once such advice is duly considered.

5. That in the case of patent illegality, the county manager would be entitled to and obliged to refuse to carry out the direction of the County Council.

6. That the failure of an administrative authority to agree with or to follow the legal advice of its law agent would not render its decision per se illegal.

7. That, as the county manager was carrying out an executive function of the Council, his decision in refusing the planning permission was in effect an order of the Council and therefore the Council were joined as respondents for the purpose of quashing this decision.

8. That, given the exceptional circumstances of the case, the applicants were justified in seeking, by way of judicial review, to ascertain the entitlement of the county manager to refuse to comply with the directive of the County Council, without firstly exhausting the appeal procedures available under the planning legislation.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381 applied.

9. That s. 4 of the Act of 1955 permits the intervention of the local authority in the exercise of executive functions of the authority by the county manager in relation to ordinary planning matters.

On appeal by the respondents it was

Held by the Supreme Court (Finlay C.J., Hamilton P., Walsh, Griffin and Hederman JJ.) in allowing the appeal to the extent of setting aside the order directing the county manager to grant permission but otherwise affirming the order of the High Court, 1, that the fact that the Local Government (Planning and Development) Act, 1963, expressly provided that a number of planning functions were to be reserved functions of the local...