Thomas Grealish v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 24 October 2006
• Neutral Citation: [2006] IEHC 310
• Court: High Court
• Docket Number: [2003 No.
• Date: 24 October 2006

[2006] IEHC 310

THE HIGH COURT

[No. 695 JR/2003]

GREALISH v BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

THOMAS GREALISH

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

GREALISH v BORD PLEANALA 2006 1 ILRM 140

MULHOLLAND & KINSELLA v AN BORD PLEANALA 2006 1 ILRM 287

O'DONOGHUE v AN BORD PLEANALA 1991 ILRM 750

STATE, SWEENEY v MIN FOR ENVIRONMENT 1975 ILRM 35

R (ERMAKOV) v WESTMINSTER CITY COUNCIL1996 2 ALL ER 302

LONDON RESIDUARY BODY v THE SECRETARY BODY v THE SECRETARY OF STATE FOR THE ENVIRONMENT 58 JPL 637

FAIRYHOUSE CLUB LTD & ORS v BORD PLEANALA & MEATH CO COUNCIL UNREP HIGH COURT FINNEGAN 18.7.2001 2001/9/2432

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

DUBLIN CITY DEVELOPMENT PLAN 1999 PARA 14.41

DUBLIN CITY DEVELOPMENT PLAN 1990

PLANNING & DEVELOPMENT ACT 2000 S34(10)

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.4

DUBLIN CITY DEVELOPMENT PLAN 1999 PARA 14.42.0(C)

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.4(II)

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.4(I)

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.8

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.11

DUBLIN CITY DEVELOPMENT PLAN 1991 PARA 15.15.24

DUBLIN CITY DEVELOPMENT PLAN 1999 PARA 14.42.0(G)

PLANNING AND ENVIRONMENTAL LAW:

Appeal

Decision by An Bord Pleanála - Development plan - Duty to give reasons - Whether An Bord Pleanála obliged to state reasons and considerations for decision to grant or refuse planning permission - Whether change in development plan would be assumed as reason for decision - Whether bound by previous grant of permission - Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453; The State (Sweeney) v Minister for Environment [1975] ILRM 35; O'Donoghue v An Bord Pleanála [1991] ILRM 750 and O'Keeffe v An Bord Pleanála [1993] 1 IR 39 applied - Planning and Development Act 2000 (No 30), s 34(10)- Certiorari granted (2003/695JR - O'Neill J- 24/10/2006) [2006] IEHC 310 Grealish v An Bord Pleanála

The applicant sought by way of judicial review an order of certiorari quashing the decision of the respondent, made in 2003, refusing permission on the appeal of the applicant for planning permission in relation to an advertising structure, on the grounds that the respondent breached the rules of natural and constitutional justice in failing to provide any, or any adequate reasons for its said decision and further that the decision was unreasonable and irrational. The applicant averred to the fact that the respondent had previously granted planning permission in 1990 and 1997 for the same development and it was submitted that the respondent failed to give reasons for its departure from those earlier decisions and also failed to explain its rejection of the inspector's recommendation.

Held by O'Neill J. in granting an order of certiorari: That the development in issue in this case was the same as the development in respect of which permission was granted by the respondents in 1990 and 1997 and there was no material change in the physical environment of the development between 1997 and 2003. Notwithstanding the fact that the respondents were entitled to reach a different decision on a later application in respect of the same development, where a previous permission had expired, they were required to set out the reasons and considerations upon which that change of stance had been adopted. There was nothing contained in the decision to explain a departure from the earlier decisions granting planning permission. The decision of the respondents was fatally flawed.

Reporter: L. O'S.

1 JUDGMENT of O'Neill J. delivered on the 24th day of October, 2006

2 The applicant in this case was on 2nd February, 2005, given leave by this court (Laffoy J.) to seek by way of judicial review an order of certiorari quashing the decision of the respondent made the 7th August, 2003, refusing permission on the appeal of the applicant for planning permission under Planning Register Reference 211/03 Appeal Ref. 29 S.202449, on the grounds that the respondent was in breach of the rules of natural and constitutional justice in failing to give any, or any adequate reasons for its said decision and that the said decision was unreasonable and irrational.

3 Leave was granted by Laffoy J. in a reserved judgment delivered on the 2nd February, 2005, in which she set out fully the factual background and planning history relevant to this matter and there is no need to repeat the same here. The following passage from the learned judge's judgment sets the scene and poses the issues which have to be resolved on this application:

"In my view standing alone the ground advanced by the applicant as to the inadequacy of the reason expressed for departing from the inspector's recommendation which was contended was a mere tautology of the refusal and did not advance in any way the explanation for the refusal is not sustainable. It is clear on the face of the record of the 2003 decision that the respondent considered two of the options open to it: to refuse in line with the decision of the planning authority; or, alternatively, to grant permission subject to conditions as recommended by the inspector. It decided to refuse permission, but it explained why it opted for this course: it considers that the proposed reduction in scale as recommended by the inspector, would not overcome its concerns, which it had outlined earlier — the scale and non-integration of the structure. That pithily tells the applicant and the world at large in terms which any intelligent person should be capable of understanding why the respondent departed from the recommendations of the inspector. In support of the submission that it was incumbent on the respondent, in giving reasons for its decision, to explain why it departed from the approach it adopted in its 1990 decision and its 1997 decision, the applicant referred to the following passage from Wade on Administrative Law, 8th Edition at p. 517:"

4 "There is no closed list of circumstances in which fairness require reasons to be given but the more important examples may be given here. First, decisions that appear aberrant without reasons have to be explained, so that it may be judged whether the aberration is real or apparent. Thus an award of abnormally low compensation to an unfairly dismissed prison officer by the Civil Service Appeal Board, which made it a rule not to give reasons, was quashed by the Court of Appeal, holding that natural justice demanded the giving of reasons both in deciding whether the dismissal was unfair and in assessing compensation, since other employers are entitled to appeal to industrial tribunals which are obliged by law to give reasons. Similarly, where the decision maker departs from a previously adopted policy (even if not published) fairness will require that departure to be explained. Thus a health authorities refusal, without giving reasons, to follow the policy of the National Health Service Executive to introduce a new (and expensive drug) was quashed."

5 When one puts the three decisions of the respondents side by side, a very stark departure from the conclusions reached in 1990 and 1997 is revealed in the 2003 decision. In 1990 and in 1997 the respondent concluded that the advertising structure would not seriously injure the visual amenities of the area and would not be contrary to proper planning and development of the area. In 2003 it concluded that the very same advertising structure would seriously injure the visual amenities of the area and would be contrary to proper planning and sustainable development of the area. Although it rationalised its conclusion in 2003 as to the impact of the structure on visual amenities on the basis that it would "contribute to visual clutter" and of its scale and non-integration, in my view, this does not explain the apparent aberration. It is not apparent that these factors did not exist in 1990 or in 1997 and the evidence before a court suggests that they did. Against this background and the fact that in 1990 and in 1997 the respondent expressly overruled the findings of the planning authority as to the obtrusiveness and detrimental impact of the structure on the visual amenities of the area, how can the validity of the 2003 decision be assessed in accordance with the applicable judicial review norms without knowing the reasons for the volte-face?

6 While it is undoubtedly open to the respondent to come to a different conclusion in 2003 to that reached in 1990 and 1997, in the unusual circumstances of this case, in my view, the ground as advanced by the applicant that the respondent should have given an explanation for departing from the stance it had adopted previously and set out the considerations which led to such departure and that the failure to do so is a breach of his rights, is a substantial ground."

7 Thus, as is clear from the above and the statement of opposition and the submissions made, the issue which arises for determination is whether the respondents failed to give any, or any adequate reasons for the impugned decision of 2003 and specifically whether there was a failure to give reasons for its departure from the earlier decisions in 1990 and 1997 whereby planning approval was granted for the same development and whether any such alleged failure was a failure to give reasons for its decision as required by law, and finally, whether any such reasons as were given were tainted by irrationality in law.

8 As the main issue in the case concerns the adequacy or otherwise of the reasons given, the relevant legal principles should be set out at this stage.

9 In the case of Mulholland and Kinsella v. An Bord Pleanála and Others [2005] I.E.H.C. 306, Kelly J. reviewed the relevant English and Irish cases, i.e. O'Donoghue v. An Bord Pleanála...