Teoranta v Cafferkey and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Finnegan P.
• Judgment Date: 22 March 2004
• Neutral Citation: [2004] IEHC 34
• Date: 22 March 2004

[2004] IEHC 34

THE HIGH COURT

RECORD NO. 2002 No. 579SP

GLANCRE TEORANTA v. CAFFERKEY & ORS

IN THE MATTER OF SECTION 5 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963

AND

IN THE MATTER OF A REFERENCE TO AN BORD PLEANALA

BETWEEN

GLANCRE TEORANTA

PLAINTIFF

AND

SEAMUS CAFFERKEY, LAURENCE HOWARD, DIETMAR KRUGER, DIANNE NOUGHTON, MYLES MANGAN, JOHN LINDSAY, MARY TOGHER, MARY FINLAY GEOGHEGAN

DEFENDANTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(2)

DUNNE V MIN FISHERIES 1984 IR 231

WADE ADMINISTRATIVE LAW 5ED P34

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

ESAT DIGIFONE LTD V SOUTH DUBLIN CO COUNCIL 2002 3 IR 585

ORANGE LTD V DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

DODD V MIN FISHERIES 1934 IR 291

FISHERIES ACT 1925 S28

RSC O.58 r8

B V B 1975 IR 54

FITZGERALD V KENNY 1994 2 IR 383

BALKAN TOURS LTD V MIN FOR COMMUNICATIONS 1988 ILRM 101

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(4)

GALWAY CO COUNCIL V LACKAGH ROCK 1985 IR 120

READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974

MCMAHON V DUBLIN CORPORATION 1996 3 IR 509 1997 1 ILRM 227

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Appeal from decision of An Bord Pleanála

Evidence - Admission of additional evidence - Whether admission of additional evidence on appeal necessary or desirable in interests of justice - Whether additional evidence should be admitted on appeal from An Bord Pleanála - Standard of review to be adopted on appeal from An Bord Pleanála - Whether appeal should be determined on merits -Local Government (Planning and Development) Act 1963, section 5 (2002/579SP - Finnegan P - 22/3/2004)

Teoranta v Cafferkey - [2004] 3 IR 401

Facts: the defendants issued a motion for directions on a number of issues, the proceedings being an appeal from An Bord Pleanála pursuant to section 5 of the Local Government (Planning and Development) Act 1963, principally:- 1. whether on an appeal pursuant to section 5, evidence additional to that which was before An Bord Pleanála could be adduced by the parties and; 2. the standard of review to be adopted on appeal.

Held by Finnegan P in directing, 1, that the appeal was to proceed on the basis of the evidence before An Bord Pleanála and not on the basis of new evidence and, 2, that in determining the appeal, the High Court should consider the said evidence de novo and adjudicate on the question referred to An Bord Pleanála on the merits that

a) in exercising its discretion as to whether further evidence should be admitted on an appeal, the High Court should adopt the practice of the Supreme Court under Order 58, rule 8 of the Rules of the Superior Courts 1986, that is, if, in the opinion of the court on the hearing of an appeal, the examination of further evidence was necessary or desirable in the interests of justice, the court had jurisdiction within its appellate function to receive only such evidence as it considered necessary to determine such appeal. As the affidavit sought to be introduced by the plaintiff did not purport to give evidence of a factual nature of any matter arising subsequent to the decision of An Bord Pleanála, it was not evidence necessary or desirable in the interests of justice which would enable the High Court to exercise its appellate function.

b) where the court was given an appellate jurisdiction it had to construe the words used by the legislature to see whether the court had power to substitute its own opinion for that of the decision maker if it considered that the impugned act was wrong on the merits and not merely wrong in law. The Oireachtas in conferring the appellate jurisdiction under section 5 of the Act of 1963 must have intended that the jurisdiction on appeal should be wider than the court’s powers when exercising its inherent jurisdiction at common law of review. Dunne v. Minister for Fisheries and Forestry [1984] I.R. 231 adopted. The issue as to whether development is or is not exempted was one which the legislature regarded as one within the competence of the courts in enacting section 5 of the Act of 1963.

Reporter: P.C.

1 Judgment of Finnegan P. delivered on the 22nd day of March 2004

2 This matter comes before the Court by way of a motion for directions issued by the Defendants the proceedings being an appeal from a decision of An Bord Pleanala pursuant to the Local Government (Planning and Development) Act 1965section 5. The following issues fall to be determined on the motion.

3 (1) Whether on an appeal pursuant to the Local Government (Planning and Development) Act 1963section 5 evidence additional to that which was before An Bord Pleanala may be adduced by the parties.

4 (2) If such additional evidence may be adduced directions in relation to the same.

5 (3) The standard of review to be adopted on appeal.

6 To some extent the issues at (1) and (3) are inter-related as the nature of the jurisdiction which the Court is exercising is relevant to the admission of additional evidence. As a result much of what I have to say in relation to Issue (1) is relevant also to Issue (3).

7 The circumstances giving rise to the appeal are as follows. The Plaintiff is the owner of lands at Muingmore, Geesala, Co. Mayo upon which are situate buildings. On the 15 ^th May 1985 Mayo County Council granted planning permission reference P85/84 for the following development—

"Reconstruction and extension of factory and offices, installation of some new plant for drying peat and manufacture of fuel pellets and briquettes at Geesala."

8 Further planning permissions were obtained under references P96/1188 and P97/585. The Plaintiff proposes to use the land, buildings and plant thereon for the manufacture of fertilizer by treating raw liquid sewage. On the 20 ^th September 2001 the Defendants made a reference to An Bord Pleanala pursuant to the Local Government (Planning and Development) Act 1963section 5(1) for its decision as to whether the proposed development is or is not exempted development the issue being whether the contemplated use is a material change from the developments authorised by the existing planning permissions. On the 22 ^nd August 2003 An Bord Pleanala decided that the proposed change of use constitutes a material change of use and which is development and is not exempted development. In these proceedings the Plaintiff appeals against the said decision.

Issue 1

9 The Local Government (Planning and Development) Act 1963section 5 as amended by the Local Government (Planning and Development) Act 1976section 14 provides as follows:-

"5(1) If any question arises as to what, in any particular case, is or is not development or exempted development, the question shall be referred to and decided by An Bord Pleanala.

(2) Where a decision is given under this section an appeal to the High Court from the decision may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow."

10 In Dunne v Minister for Fisheries and Forestry 1984 I.R.231 Costello J. quoted with approval from Wades Administrative Law (Fifth Ed. p34) — "The system of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review the court is concerned with its legality. On an appeal the question is “right or wrong”? On review the question is “lawful or unlawful”?"

11 He went on to say

"However, this does not mean that in every case the court's jurisdiction on a statutory appeal is the same; in every case the statute in question must be construed. In construing a statute it does not seem to me to be helpful to apply by analogy the rules of judicial review since, by granting a statutory appeal, the Legislature must have intended that the court would have powers in addition to those already enjoyed at common law."

12 Accordingly where the Court is given an appellate jurisdiction it must construe the words used by the Legislature to see whether the Court has power to substitute its own opinion...