High Court of Ireland Decisions

1. This is an application for leave to apply for judicial review of a decision of the Respondent made on 25th March, 1997 to grant planning permission to the first named Notice Party for a development comprising general bulk storage warehouse (2,310 square metres) , marshalling yard, weighbridge, buffer, silo complex, office building (64 square metres), security building (9 square metres), fencing and gates all at Dublin Port, South Bank Quay, Pigeon House Road, Dublin. The relief sought is for an Order of Certiorari quashing the said decision. This Motion is brought pursuant to the provisions of Section 82 of the Local Government (Planning and Development) Act, 1963 as amended by the Local Government (Planning and Development) Act, 1992, which provided that an application for leave to apply for judicial review in respect of a decision of the Respondent must be made on notice to every party to the appeal and further that:-

2. The meaning of the words "substantial grounds" has been considered in a number of cases, and I would adopt the comments of Carroll J. in McNamara -v- An Bord Pleanala (1995) 2 ILRM 125 at page 130 where she said:-

3. In the present case there was an oral hearing before an inspector, which resulted in a lengthy and detailed report running to seventy-one pages culminating in the inspector's recommendation which reads:-

4. Notwithstanding the inspector's recommendation, the Respondent decided to grant the permission, and in the course of the decision set out the reasons for it as follows:-

5. At the hearing before the inspector a number of grounds of objection to the application were put forward, but only one of those grounds is relevant to this application, namely, the question of traffic control. The site in respect of which permission was sought is reached by a road which, at the time of the original hearing, was under the control of the Dublin Port and Docks Board, which was the then statutory authority controlling Dublin Port. It is common case that the traffic plan for the area referred to in the reasons given for the decision by the Respondent was a traffic management plan prepared by the Port and Docks Board. Such a plan could only be implemented pursuant to a Harbour Works Order made under Section 134 of the Harbours Act, 1946, but if such an Order existed, then the implementation of the plan would be an exempt development under the planning code, and would not require a specific planning permission. What in fact happened in the present case was that by virtue of statutory instrument no. 242 of the 1966 the Minister for Transport and Power authorised the carrying out of certain works which would probably include the implementation of the transport management plan, but the Order provided that such works were to be completed within a period of ten years from the commencement of the Order. The traffic management plan referred to was not made until 30th October, 1996, and clearly it is not authorised by the Dublin Harbour Works Order, 1966. It would, therefore, have required a further Harbour Works Order to have been made before the Traffic Management Plan could be implemented.

6. The matter is slightly complicated, although I think not in any relevant way, by the fact that, pursuant to the Harbours Act, 1996, the Dublin Port and Docks Board was superseded by the Dublin Port Company, and under the Harbour's Act, 1996 (Companies) (Vesting Date) Order, 1997 the Dublin Port and Docks Board was dissolved on

7. The grounds on which it is sought to challenge the Respondent's decision are twofold. The first ground is that:

8. There are a number of somewhat overlapping subgrounds given which may be summarised under the following headings:-

9. The second ground is that:-

10. I should say at this stage that I consider that the second ground is completely unsustainable. The legal position is that the Traffic Management Plan cannot be implemented without a planning application, and therefore an opportunity will be given to the public to object, and accordingly there can be no question of either the parties or the public being deprived of any of their rights.

11. The criteria for considering the contention that the grant of a planning permission is so unreasonable that no reasonable authority would ever have come to it, or put another way, that it is irrational, is set out by the Supreme Court in O'Keeffe -v- An Bord Pleanala and Others (1993) 1 I.R. 39. After considering the authorities, Finlay C.J. said at page seventy-one:-

12. I am, of course, bound by this decision, but in any event it seems to me to be totally consistent with the policies of the planning legislation, where there is a clearly defined principle that there must be certainty in planning matters, thus the very strict time limits put on appeals and the very short period within which a challenge of this nature may be brought. Furthermore, the provisions whereby liberty to apply for judicial review must be brought on notice, and whereby the Applicant must establish substantial grounds, are designed to ensure that at the earliest possible moment the Court can refuse an application if the grounds are not substantial, and thus ensure that the permission becomes absolute at the earliest possible moment. This is particularly relevant as a planning permission only lasts for a limited period, and the whole system would be open to abuse by allowing lengthy court proceedings to take place while the term of the planning permission is running. I should add that I am not in any way suggesting that such is the object of the present application, but simply that the possibility of such an attitude while objecting to planning permission is something which almost certainly influenced the policy makers.

13. To turn to the sub-grounds which I set out above, I would propose to deal with each of them separately to consider whether they constitute substantial grounds for judicial review.

14. It is alleged that the Respondent assumed that the Traffic Management Plan was authorised by a Harbour Works Order and constituted an exempted development. There is no evidence before me that the Respondent made any such assumption. The reason given in the decision that the Respondent had regard to the traffic plan for the area does not assume that that plan can be implemented immediately, or that it has been authorised in some way. It is simply a statement that the Respondent had regard to the fact the plan exists as a plan. I think this is confirmed by one of the other matters to which the Respondent had regard, namely, the rezoning provisions contained in the Dublin City Development Plan. The fact that the area may have been zoned for some particular use does not mean that any particular piece of land may immediately be put to that use without obtaining a planning permission.

15. In any event, in the inspector's report itself a considerable degree of uncertainty is expressed as to whether the Traffic Management Plan could be implemented without something further, and the Respondent must therefore have been aware of these doubts. The Respondent would also have been aware, from the Inspector's Report, that the Dublin Port and Docks Board stood by their Traffic Management Plan, and at least by implication had the intent to do anything necessary to implement it. Accordingly, I do not think that this is a substantial ground to support judicial review.

16. The second point made was that the development was premature until a Harbour Works Order had been made, and, presumably, it can now be argued that it was premature until planning permission was granted in relation to the traffic management plan. It think this is governed by the same principles as the first objection. What the Respondents took into account, and were entitled to take into account, was the fact that a plan had already been drawn up, and that the Dublin Port and Docks Board had the intent to implement it. I think it is very significant in relation to both these objections that the Respondent did not impose a condition on the planning permission that the Traffic Management Plan be implemented. Had it done so, it might well be said that the decision was premature, as it postponed the implementation of the decision for an indefinite time, and it left the possibility or otherwise of the development being carried out in the hands of some other party. The Respondent did not take this course, but rather said that having regard, inter alia, to the traffic plan, it considered that the proposed development was acceptable in terms of traffic safety and convenience. Again, I do not consider this was a substantial ground.

17. The third series of grounds of objection related to the fact that the Traffic Management Plan might never be implemented or might be altered or amended. This is undoubtedly true, because it is only a plan, it is not a binding commitment. Even if a Harbour Works Order had been in place, or a planning permission had been granted, it was still a matter for the Port and Docks Board, or now for the Dublin Port Company to decide whether to implement the plan in the form in which it exists. The Port authority, in deciding whether to implement or to amend the plan, must have regard to the welfare of the entire port area under its authority and not merely to this development, and circumstances might arise in which the plan could not be implemented because it might adversely affect other parts of the port. Again, I have to say that I am of the view that the Respondent was entitled to take into account the fact that the plan existed, and therefore that there was an intent on the part of the Port authority to do all in its power to provide for a proper flow of traffic in the area. The Respondent was also entitled to take into account that this was one of the functions of the Port authority, and to assume that they would carry out their functions properly. I would also point out that it is spelt out clearly at page forty-one of the Inspector's Report that the traffic plan will require consultation with interested parties, and that it can be changed if necessary. The Inspector does not make any adverse comment on this, and would appear to accept the fact. I do not think that this is a substantial ground.

18. Finally, the Applicant alleges that the traffic plan itself is "upon all the evidence defective". I think this is quite unsustainable in the light of the Inspector's Report. Certainly, the conclusion reached by the Inspector was that it was not adequate, but the evidence before him was contradictory on this point. There certainly was evidence that the plan was acceptable. For instance, at page forty-nine of the Report it is recorded that the Dublin Port and Docks Board submitted that:

19. Similarly, the evidence on behalf of the first Respondent, that is the Applicant for the planning permission, at page fifty-one of the Report is that the plan was workable, and at page sixty that the number of traffic movements which would be generated by the proposed development would be insignificant. There was, therefore, evidence, both from the Port and Docks Board and from the Applicant for the planning permission, that the plan was adequate, and, therefore, I do not think that the Applicant can establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision, which is the test laid down in O'Keeffe -v- An Bord Pleanala .

20. Finally, I should say that an argument was also put forward that there was an error on the face of the Respondent's decision, which would be a ground for quashing it. This has not been pleaded as an express ground although it is sought to justify it by saying that it arises by implication. However, without deciding the pleading point, I am quite satisfied that there is no error on the face of the decision. It only states that the Respondent had regard to the Traffic Management Plan, and as I have already held that this did not impute an inference that the plan was immediately implementable. It follows there was no error on the face of the record..

21. Accordingly I will refuse leave to apply for Judicial Review.