THE HIGH COURT
                					  	                       Record No. 1996 411 JR

BETWEEN

DROGHEDA PORT COMPANY
									APPLICANTS
AND
THE COUNTY COUNCIL OF THE COUNTY OF LOUTH AND
THE MAYOR ALDERMEN AND BURGESSES OF THE
BOROUGH OF DROGHEDA
									RESPONDENTS

Judgment of Mr. Justice Morris delivered the 11th day of April, 1997.

	This is an application for leave to apply by way of an application for Judicial Review for Orders in respect of a Notification of grant of Planning Permission in respect of an application for a proposed development comprising a Quay and Hard-Stand at Tom Roe's Point.  The particular part of the notification of the grant of Planning Permission to which the application relates is Condition No. 19 thereof.
	The Applicant claims that the purported determination of the application was bad and it seeks a declaration to that effect and it claims to have the said determination set aside and that the Respondents do be ordered to re-adjudicate on the application in continuance.  The grounds upon which the said relief is sought are that the Respondents failed to observe the principles of constitutional and natural justice in their adjudication of the application by:-

(a) 	failing to seek submissions from the Applicants in relation to the contribution to be provided for in Condition 19.
(b)	sought by the condition erroneously and illegally to impose on the Applicants, a harbour authority, the function of a road authority.
(c)	provided for the carrying out of roadworks to facilitate the said development without imposing or fixing a time limit within which the same were to be carried out.
(d)	provided for an option in the condition which was improper.

THE FACTS, INSOFAR AS THEY ARE RELEVANT TO THE PRESENT APPLICATION

	The Applicants are a harbour authority for Drogheda Port.  As congestion had arisen in Drogheda Port, the Applicants were desirous of developing the port and proposed the development of a quay, hard-standing and ancillary works at Tom Roe's Point.  On the 1st July, 1996, the Applicants lodged an application for planning permission (Reference No. 96463) with the First named Respondents.  The First named Respondents requested further information in respect of certain proposed linked roads for the proposed development and on the 9th August, 1996 this information was furnished.  Further information was sought in relation to tonnage entering the port and the route to be taken by heavy vehicular traffic serving the port.   An environmental impact study was lodged.  Communications took place between the appropriate officers of each of the two Respondents and a representation was received from the Applicants requesting that an early decision be reached on the planning application.  To expedite a decision, estimates were made by the two Respondents of the costs of strengthening and improving the roadway in the functional area of each Respondent.  The Affidavits lodged disclose that appropriate efforts were made by the Respondents to reach on an appropriate figure for the contribution to be inserted in Condition 19.  A variety of factors were taken into account in reaching this figure.  The notification of the decision to grant planning permission for the development, subject to the conditions set out in the schedule, numbered 1-19 inclusive, issued on the 20th November, 1996.
	The terms of Condition 19 are as follows:-

	"19.   The developer shall carry out road straightening/improvements to the satisfaction of the planning authority along the following roads: Baltray Road, Newfoundwell Road, Crushrod Lane, Windmill Road and Crosslanes Road to offset the impact of the additional H.G.V. traffic generated by the proposed development or the developer shall pay a contribution to the planning authority for the costs of improving the road to cater for the proposed traffic projected for the development estimated at £226,432 in the Drogheda Corporation area and £80,000 in the Louth County Council area.  The total amount shall be paid in accordance with Section 26.2.h of the Local Government (Planning and Development) Act, 1963."

THE APPLICANTS' CASE AS SUBMITTED TO THE COURT

1.	The Applicants submit that fair procedures would require that prior to the fixing of the amount of the contribution fixed in Condition 19, that discussions and negotiations would be embarked upon between the parties with a view to determining the correct amount to the said contribution.  It is submitted that no such discussions or negotiations took place and accordingly there was an infringement of fair procedures in that the principles of aude altram partem were not observed and that the Applicants had no opportunity to make their case prior to the fixing of the amount of the contribution.
2.	It is submitted that Condition 19 offers the Applicants an option, that is to say, it provides for the carrying out of the stated works by the Applicants or in the alternative the payment of the contribution provided for in the condition.  It is submitted on behalf of the Applicants that the Applicants are a statutory body being a harbour authority and as such does not have the powers of a highway authority which would have been necessary in order to avail of the first part of the said option.  Accordingly, it is submitted that this part of the condition is bad and as a consequence the entire condition is null and void.  Moreover, it is submitted that even if the Applicants were vested with the powers to carry out the said works of necessity, the carrying out of these works would require the Applicants to encroach upon the lands of third parties.  Since it does not possess any such power to enter on other lands it is submitted that the condition is bad.
3.	It is submitted on behalf of the Applicants that there is no power vested in the Respondents to include in the condition a requirement that the Applicants pay a contribution to a third party, in this case the Drogheda Corporation, as a condition to the carrying out of the said works and the granting of the said permission.
4.	It is submitted that there is no time limit set within the condition for the payment of the said money and accordingly on the principle enunciated in Bord na Mona -v- An Bord Pleanala and County Council of the County of Galway, the condition failed to comply with the requirements of Section 26, subsection (2), of the Local Government (Planning and Development) Act, 1963 and was invalid.
5.	It is submitted that since the condition failed to make provision for a reduction in the amount of the contribution in the event of partial development, it fails to comply with Section 26(2)(h) of the 1963 Act and is accordingly bad.

THE ONUS UPON THE APPLICANT IN AN APPLICATION OF THIS NATURE

	Section 19 of the Local Government (Planning and Development) Act, 1992 requires that the Applicants satisfied the Court that they have "substantial grounds" for contending that the decision is invalid and ought to be quashed.  The meaning of "substantial grounds" in this context has been considered by the Supreme Court in Scott & Ors. -v- An Bord Pleanala & Ors., 1995 1 I.L.R.M. 426 and the High Court (Carroll J.) in McNamara -v- An Bord Pleanala, 1995 2 I.L.R.M. 125 at page 130.  It was further considered by McCracken J. in Mulhall -v- An Bord Pleanala and Kelly J. in Blessington & District Community Council Limited and Wicklow County Council, (unreported 19th July, 1996).  From these authorities I have to be satisfied that the grounds must be substantial, reasonable, arguable, weighty and they must not be trivial or tenuous.
	I accordingly approach the Applicants' submissions on that basis.
	
	SUBMISSION 1
	This submission presupposes that there is an obligation upon the planning authority to consult with the Applicant and engage in negotiations and discussions with it prior to fixing the figure which is to be inserted in the condition.  I find no authority for such a submission in Section 26 of the Local Government (Planning and Development) Act, 1963 or elsewhere.  It appears to me that the Applicants' submission is based upon a misconstruction of that part of the judgment of Mr. Justice Keane in Bord na Mona -v- An Bord Pleanala at page 210 in which Mr. Justice Keane refers to conditions in a permission "which require the agreement of certain matters between the planning authority and the applicant".  In my view, the learned Judge is doing no more than referring to circumstances in which a condition may attach to a permission providing that the amount of the contribution is "to be agreed".  In default of agreement an application may be made to An Bord Pleanala for resolution of the difference.  Nothing in this judgment, in my view, is authority for the proposition that negotiation between the parties is required before the planning authority may fix an amount in a condition.

	SUBMISSION 2
	In my view, there is very little doubt that the carrying out of work "strengthening/improving" to the satisfaction of the planning authority, the roads named in Condition 19, would necessitate the carrying out of significant roadworks in the functional area of Louth County Council.  The Applicants, a statutory body, are not possessed of this power.  It is the Applicants wish to argue that in these circumstances for the Respondents to offer the Applicants such an option when they knew or must be deemed to have known that this option was not available to them taints the entire of the condition and renders it null and void.  No authority is cited for this proposition, however, that the submission could not be regarded as trivial or tenuous and on the other hand could be regarded as significant, reasonable, arguable and weighty.  In these circumstances, I am of the opinion that the Applicants have discharged the onus of proof and that leave should be given in regard to this submission.

	SUBMISSION 3
	Section 26 of the 1963 Act contains no provision which would make a condition requiring payment of a contribution to another planning authority improper.  On the contrary, Section 26(2)(h) of the act provides for a condition for "requiring contribution.......... towards any expenditure......... that is proposed to be incurred by any local authority in respect of works........ facilitating the proposed development".  In my view it clearly envisages an entitlement to require payment of a contribution to a neighbouring local authority.

	SUBMISSION 4
	In Bord na Mona -v- An Bord Pleanala, Mr. Justice Keane was dealing with circumstances where the relevant condition provided for the payment of the contribution in question by three annual instalments.  The learned trial Judge held that this requirement unjustifiably constrained the plaintiff as to the time within which he might exercise the planning permission and frustrated the intention of the legislature to afford the owner of property a period of five years from the grant of permission to implement his permission and, he held, that it was therefore invalid.  Nothing in this authority supports the proposition that, in the grant of a permission which requires the payment of a contribution by the developer, that it be stipulated that it be paid in staged payments.  In my view, the simple requirement provided for in Condition 19 that the developer make the contribution of the payments of £226,430 and £80,000 to the respective local authorities is in accordance with the Act.  Moreover, the provision that "this total amount shall be paid in accordance with Section 26(1)(h) of the Local Government (Planning and Development) Act, 1963" is in all respects a compliance with the 1963 Act and in the event of a partial development, the pro-rata reduction is capable of calculation and assessment in accordance with the section.

	Accordingly, I am satisfied that the Applicants in this case have satisfied the Court that there are substantial grounds for granting it leave to seek relief by way of Judicial Review on the one ground, namely, Ground H in the Notice of Grounds, that is to say "the condition erroneously and illegally seeks as an alternative to impose a road function on a harbour authority which is manifestly, ultra vires, the power of the harbour authority" and I accordingly grant the Applicants the relief sought at paragraph D7, that is to say, leave to apply to the Court for an Order of Mandamus directing the Respondents to re-adjudicate the application in continuance".