State (Pine Valley) v Dublin County Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Walsh J.,Henchy J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1982 WJSC-SC 1384
• Date: 01 January 1984
• Docket Number: [1980 No. 553 SS]

1982 WJSC-SC 1384

THE SUPREME COURT

Walsh J

Henchy J.

Hederman J.

1980-553 S.S.

1981-156

STATE (PINE VALLEY DEV.LTD.) & DUBLIN CO.CO.

Between

THE STATE (PINE VALLEY DEVELOPMENTS LIMITED)

Prosecutors

Respondents

and

DUBLIN COUNTY COUNCIL

Respondents

Appellants

1 JUDGMENT delivered on the 5th day of February 1982by Walsh J. [Hederman J. concurring]

2 On 16 July 1980 the prosecutor company applied to the Dublin County Council for planning approval on foot of an application which related to a site at Newlands in Clondalkin, Co. Dublin, in accordance with plans and particulars lodged by the applicant. This application for planning approval was a sequel to and relied upon a purported outline permission granted by the Minister for the Environment to the prosecutor company on 10 March 1977. The purported outline permission granted by the Minister was the result of an appeal taken by the prosecutors against the decision of the County Council in June 1976 to refuse an application for planning approval which had been made to them on 26 April 1976. Stated briefly, the reasons for that refusal were that the site was located in the green belt and that the development would contravene the development plan. It was also objected that public piped sewage services were not available and that a proposed private treatment plant was not acceptable to theplanning authority.

3 The prosecutors" appeal to the Minister was in form an appeal against this refusal but the Minister's decision took the form of granting an outline planning permission rather than dealing with the application as it was made to the planning authority.

4 Section 26 of the Local Government (Planning and Development) Act 1963provides at subsection (5)(b) that where an appeal is brought under that subsection from a decision of a planning authority and is not withdrawn the Minister shall determine the application as if it had been made to him in the first instance and his decision shall operate to annul the decision of the planning authority as from the time it was given. That is the procedure which the prosecutors availed of. for the purpose of appealing against the refusal of the County Council.

5 Section 26, subsection (3)(a), prohibits a planning authority from granting permission under that section where the development concerned would contravene materially the development plan or any special amenity order relating to the area save with the consent of the Minister. Paragraph (b) provides that where an application is made to the Minister for his consent for such a breach of the development plan any person may furnish the Minister inwriting his objection to the grant of the consent and required the Minister before granting the consent to consider any such objections which he received within 21 days after the receipt of the application. In the present case the proposed development would have contravened in a material way the development plan. The County Council refused the application and did not seek to apply to the Minister for any permission to act in breach of the plan. The outline planning permission granted by the Minister on the appeal contravened materially the developmentplan.

6 The question which immediately arises is whether the Minister on the hearing of such an appeal had any power to grant a permission which would amount to a contravention of the development plan. The argument in favour of the Minister's action on this point is that as the Minister could authorise the Council to do it he could authorise himself to do it. On the other hand it is clear that the Oireachtas removed from the discretion of the planning authority a power to contravene the plan unless it was authorised by the Minister. That in itself is a clear indication of the seriousness with which the Oireachtas viewed any such element. One would have expected therefore that if the Oireachtas had ever contemplated giving the Minister any such power in effect at first instance the legislation would have said so. Because of the fact that the statute gave the Minister a particularjurisdiction with reference to any such application to contravene the development plan by the planning authority but was silent with regard to any power to do so on his own initiative on appeal where no such application had been made I am satisfied that the statute never contemplated and cannot be construed as meaning that the Minister had such a power. The form of appeal contemplated is in effect an appeal by way of re-hearing. So far as the breach of the development plan is concerned the original hearing by the planning authority had not involved any application to the Minister for permission to contravene the plan. It appears to me therefore that the Minister in hearing the appeal as if it were being heard at first instance was in no better position than was the planning authority save that he was free to arrive at a different decision but only a decision within the contemplation of the statute. As was pointed out in the decision of this Court in Murphy v The Minister for Local Government [1972] I.R. 215, the Minister as such appellate tribunal is not exercising any of the executive functions of the State but is simply exercising statutory functions conferred upon a persona designata. He has no function in the matter outside those either expressly or by necessary implication conferred on him by the statute. In my opinion there is nothing in the statute which can be found to substantiate the view that such power was expressly or by necessary implication conferred upon the Minister. I am satisfied that the outline planning permissiongranted by the Minister was made without jurisdiction in so far as it permitted contraventions of the development plan and was therefore ultra vires and of no legal effect.

7 The present proceedings were brought for the purpose of obtaining an order from the Court to compel the planning authority to grant planning approval in conformity with the outline planning permission granted by the Minister. Notwithstanding the order of the Minister the provisions of section 26(3) of the Act of 1963 still bind the planning authority and they are not entitled to grant any planning permission which would materially contravene the development plan in the absence of a permission to that effect granted by the Minister upon application made by them. As no such application was made and as no valid permission to that effect was ever granted by the Minister the planning authority cannot be compelled to violate the provisions of the Act.

8 The prosecutors have sought to rely upon the default procedure provided for by section 26, subsection (4), of the Act of 1963. That provides that where a planning authority either does not make any decision or having made the decision does not give notice to the applicant of its decision within a period of two months the permission, sought should be regarded as having been given on the last day of the two-monthperiod.

9 It appears to me to be quite clear that the section is included in the Act as an indication by the Oireachtas that planning authorities were to act within a reasonable time. While it might be thought that perhaps in some cases a period of two months was somewhat short, nonetheless that is the period which applies. It means that where a valid application is made to a planning authority and when such application is in accordance with the permission regulations and all regulations are complied with and the planning authority does not give notice of its decision (if any) within the two-month period the permission sought shall be regarded as having been granted. This, quite obviously contemplates a valid application and one-which is manifestly not permitted by the Act. The present application, in as much as it is an application for a permission which the planning authority has no statutory or other power to grant because to do so would amount to a contravention of their own development plan, is clearly not within the subsection. In my view, the default procedure does not operate to produce an effect which is equivalent to the granting of permission in a case where the application is...