State (Elm Developments Ltd) v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 23 February 1981
• Neutral Citation: 1981 WJSC-SC 533
• Court: Supreme Court
• Date: 23 February 1981

State, Elm Developments v Bord Pleanala

THE STATE (ELM DEVELOPMENTS LIMITED)

v.

AN BORD PLEANALA

1981 WJSC-SC 533

Henchy J.

Griffin J.

Kenny J.

No. 269 S.S/1980

No. 222/1980

THE SUPREME COURT

LOCAL GOVT

Planning

STATUTE

Interpretation

1 Judgment of Henchy J. delivered the 23rd February 1981 [nem. Diss]

2 Elm Developments Limited ("the developer") applied in 1979 to Bray Urban District Council, the local planning authority, for planning permission to build a shopping centre at Quinsboro Road, Bray. The application was successful. On the 8 February 1980 a notification of the decision to grant the permission issued from the planning authority to the developer. This permission was, of course, not final. Under s. 26 of the Local Government (Planning and Development, Act, 1963(as amended by the 1976 Act), any person was entitled to appeal to An Bord Pleanala ("the Board") against the grant of the permission. However, this right of appeal is not unqualified. Certain formalities are expected to be complied with. Where (as is the case here) the permission is granted, the would-be appellant must appeal within the period of twenty-one days beginning on the day of the giving of the decision: s. 26(5) of the 1963 Act. Furthermore, under the relevant Regulations (Art. 36 of S.I. No. 65 of 1977) it is required that an appeal "shall (a) be in writing, (b) state the subject matter of the appeal, (c) state the grounds of appeal, and. (d) be accompanied by a deposit of £10 as required by Section 15 of the Act of 1976".

3 In this case, one E. Power ("the appellant") wrote to the Board on the 28 February 1980. The letter stated that on behalf of local residents and himself he wished to appeal against the grant of permission. The letter was accompanied by a deposit of £10. In every respect except one, the letter was unquestionably a valid appeal. The single questionable feature was that the letter did not state the grounds of'appeal. Instead, what the appellant put in the letter was: "Full particulars of the extent and nature of our appeal will be submitted to you shortly when the residents have examined the implications of this decision in detail".

4 Because of the failure of the appellant to state the grounds of appeal in the letter, the developer has claimed that the "appeal" is a nullity and that the Board has no jurisdiction to hear it. To bring his point home, he sought and obtained a conditional order of prohibition against the Board, under which the Board would be debarred from hearing the appeal. But D'Arcy J. refused to make absolute the conditional order. He held that the requirement that the written appeal should state the grounds of appeal is directory rather than mandatory, and that, accordingly, the Board was entitled in the circumstances to overlook the non-compliance with it. Keane J., in The State (Walsh) v. An Bord Pleanala (19 May 198O; unreported), a case in which the facts were indistinguishable from those of the present case, reached the same conclusion. The sole question in this appeal by the developer against the order of D'Arcy J. is whether that conclusion is correct.

5 Whether a provision in a statute or a statutory instrument, which on the face it is obligatory (for example, by the use of the word 'shall1), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.

6 An example of a truly mandatory provision is to be found in the decision of this Court in Monaghan U.D.C. v. Alf-A-Bet Promotions Ltd.(24 March 198O; unreported). The developer in that case was seeking development permission which would allow him to convert a drapery shop in the town of Monaghan into a betting office and amusement arcade. The relevant planning regulations required that a notice published by the developer in a newspaper of his intention to apply for development permission should state, inter alia, "the nature and extent of the development. The notice published by the developer in that case referred only to "alterations and improvements". By no stretch of interpretation could that be said to be indicative of the nature and extent of the proposed development. The Court considered that the inclusion in the notice in a newspaper of information as to the nature and extent of the proposed development was vital to the proper operation of the...