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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Wicklow County Council & Anor v. An Bord Pleanala & Anor [2003] IEHC 82 (26 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/82.html Cite as: [2003] IEHC 82 |
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Wicklow County Council & Anor v. An Bord Pleanala & Anor [2003] IEHC 82 (26 February 2003)
[2000 No. 487 J.R.]
Between:
Applicant
Respondent
Notice Parties
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 26th February, 2003.
This is an application for leave to seek judicial review for the relief of:-
1. An order of certiorari of a decision of the respondent to grant to the second notice party planning permission for a proposed development, namely the conversion of a milking parlour and the installation of a cremator at Oghill, Redcross, County Wicklow, Planning Register Reference No. 00/2335, which decision was given on the 13th July, 2000.
2. An order of mandamus directing the respondent to comply with the direction given by the applicant to the respondent on the 10th July, 2000 to refuse planning permission for the installation of a cremator as applied for in Planning Permission Register Reference No. 2335/2000 at Oghill Lower, Redcross, County Wicklow.
3. A declaration that the respondent is required to comply with a direction validly given pursuant to s.4 of the City and County Management (Amendment) Act, 1955.
4. An order staying any appeal brought against the decision of the respondent to grant planning permission on Planning Application Register Reference No. 255/2000 for the conversion of a milking parlour for use as a pet crematorium at Oghil Lower, Redcross County Wicklow until the determination of these proceedings.
The grounds upon which the relief is sought are as follows:-
(1) The applicant is entitled to give to the respondent directions as to the determination of planning applications under Part IV of the Local Government (Planning & Development) Acts, 1963 to 1999 pursuant to the provisions of the City and County Management (Amendment) Act, 1955.
(2) By a direction given under s. 4 of the City and County Management (Amendment) Act, 1955 the applicant directed the County Manager to refuse planning permission on Planning Register Reference No. 2335/2000 for the installation of a pet crematorium at Oghill, Redcross in the County of Wicklow which direction was given by resolution made at a meeting held on the 10th July, 2000.
(3) At that meeting on the 10th July, 2000 the aforesaid resolution pursuant to s. 4 of the City and County Management (Amendment) Act, 1855 was put to the meeting. Twenty two of the twenty four members entitled to vote, voted in favour of the motion and there was no member voting against it. In the premises the respondent was required to comply with the direction validly given and was required pursuant to that direction to refuse planning permission in accordance with the aforesaid resolution.
(4) By order dated the 13th July, 2000 the respondent decided to grant planning permission to the second named notice party for the conversion of a milking parlour and installation of crematorium at Oghill, Redcross, County Wicklow in direct contravention of the direction given by the applicant to the aforesaid respondent County Manager on the 10th July, 2000 and proceeded to give notice of that decision to the second named notice party.
(5) The respondent acted in excess of jurisdiction by issuing a decision in direct conflict with the direction given by the applicant on the 10th July, 2000.
(6) The respondent acted ultra vires in deciding to grant permission for the installation of a crematorium at Oghill, Redcross in the County of Wicklow.
(7) The respondent acted contrary to fair procedures in failing to communicate any concerns that he had in respect of the aforesaid resolution to the applicant prior to the making of the decision of the 13th July, 2000 and failed to inform the applicant or any of the members thereof of his intention to refuse to comply with the direction validly given.
(8) The respondent erred in law in deciding to grant a planning permissions in circumstances where the council had unanimously declared that the proposed development constituted a material contravention of the plan.
(9) The respondent erred in law in failing to have regard to the resolution passed pursuant to section 4 of the City and County Management (Amendment) Act, 1955 and failed to properly comply with the terms of the resolution.
(10) The decision is unreasonable and contrary to plain reason and common sense.
(11) The respondent failed to have sufficient regard to the nature of the direction given which was a decision of a democratically elected body and failed to have regard to the protection which such decisions are given under Bunreacht na Éireann.
The application is grounded upon an affidavit of Patrick Doran who is a member of Wicklow County Council and it is to be noted that these proceedings are taken by the elected members of Wicklow County Council ('the County Council) against the County Manager in circumstances where the respondent refused to abide by a purported decision of the members under s. 4 of the City and County (Amendment)Act, 1955 ('the Act of 1955') directed to the respondent to refuse planning permission to the second notice party for the conversion of a milking parlour for use as a pet crematorium and the installation of a cremator on his lands at Oghill Lower, Redcross, County Wicklow.
In his affidavit he refers to his history as an elected member of the County Council and the fact that the second notice party applied for the planning permission in question. He states that he received a large number of representations from members of the public who expressed concern about the nature of the proposed development. He indicates that the majority of concerns related to health and it appears that Councillor Doran has concerns relating to what he perceived to be health hazards associated with incineration. Concern was expressed to him that the proposed development was being located in an area primarily used for agricultural purposes and high quality food production and that the use of the facility for animal incineration was incompatible with the nature of the area for such food production.
Other concern expressed was to the effect that the proposed development would have a serious impact not just on health of the people living locally but on the amenities and value of adjoining property and would constituted a serious reduction in
the value of property which he says and believes is a legitimate planning consideration. Further concern related to the impact of the proposed development of tourism in circumstances where it is claimed that the area is a major tourist area. In addition it was considered that the location of the proposed facility was inappropriate and was contrary to the proper planning and development of the area and that the access road was inadequate and that the proposed development would be visually obtrusive.
Councillor Doran consulted with other elected representatives who had apparently received like representations to those received by Councillor Doran and concern was also expressed that the proposed development constituted a material contravention of the Wicklow County Development Plan.
As a result of this contact with other elected representatives he and other councillors formulated the s. 4 motion directing the respondent to refuse the planning permission sought. This motion was apparently circulated among the members of the council but was not notified to the second notice party and it came before a meeting of the County Council on the 10th July, 2000. It appears that at the meeting there was a wide ranging discussion on the motion and it is stated that all who spoke expressed the view that the planning permission should be refused. Councillor Doran has exhibited draft minutes of this meeting which he says sets out the concerns expressed.
Councillor Doran indicates that at the meeting the Chairman of the Council indicated to the members that they should keep their comments directly relevant to the application submitted and to planning concerns which they had with regard to the proposed development. A vote was taken on the motion and the unanimous view was that the respondent manager should refuse the planning permission sought.
Councillor Doran indicates that a number of reasons for refusal were formulated which included the health implications arising from pollution associated with the activity and the visual impact of the proposed development.
Notwithstanding this passing of the s. 4 motion the respondent made a decision to grant planning permission for the proposed development and he issued an order to this effect on the 13th July, 2000, subject to five conditions. It appears that this decision was taken without any prior notification to the members of the County Council.
As a result of this decision the members considered that the democratic will of the County Council had been ignored and as a result the members called a special
meeting of the Council and having obtained legal advice they were informed that the only remedy was to obtain relief by way of judicial review of the decision of the respondent. It appears that at the special meeting of the County Council the members purported to instruct the Secretary of the County Council to instruct solicitors on behalf of the County Council to draft appropriate proceedings to challenge the decision of the County Manager. However, this direction was not complied with by the management of the County Council as a result of which a further meeting of the County Council was convened to propose a further s. 4 motion to instruct solicitors to bring the proceedings. This resulted in a fresh resolution being passed but again the executive of the County Council refused to comply with this motion and as a result of same these proceedings have been instituted by the elected members in the name of Wicklow County Council.
In light of the history of the matter an appeal has now been taken to An Bord Pleanála from the decision of the respondent by aggrieved members of the public.
With regard to the initial s. 4 motion the same purported to direct the refusal of planning permission on the grounds:-
1. The proposed development constitutes sporadic development in a landscape area of special control (corridor area) contrary to the provisions of the County Development Plan 1999. These provisions are required to preserve scenic amenity, views of special amenity value and special interest and to conserve the attractiveness of the county for the development of tourism and tourist related employment. The Council's development strategy policy is to encourage further growth of existing settlements and to restrict development in rural areas to cases where there is a bona fide necessity to locate in that rural area instead of in existing settlements.
2. The proposed development would materially contravene the industrial development policy as described in S. 2.8.5 of the County Development Plan 1999, which restricts the development of new industrial developments to suitably zoned lands within settlements or their environs or on suitability zoned lands at grade separated junctions on the N11.
3. The proposed development is likely to cause serious air pollution because of the nature of the development, substances involved and the prevailing
micro-climate of the area and no evidence has been submitted to the contrary.
4. The proposed development would form an obtrusive feature on the landscape area of special control by virtue of the necessity of a chimney stack and its likely emissions, which would be visible over a wide arc of views and would interfere with views of special amenity value which it is necessary to preserve because of the dependency of the economy in this area on tourism, which is based on the unique unspoiled nature of the landscape in this area.
5. The proposed access road to the site is not considered suitable for further development, particularly industrial development, as it is inadequate in terms of width, surface, drainage and alignment.
With regard to the decision of the County Manager, five conditions were imposed as follows:-
1. This permission refers to the development as described in the documents lodged, as revised by the submissions submitted on 17th May, 2002, save as the conditions hereunder otherwise require.
reason: For Clarification.
2. Prior To Commencement Of Development, full details of training supplied to the operator of the facility shall be submitted to and agreed acceptable in writing by the Planning Authority. This should include name and qualification of the trainer, length and details of training and any assessment made of the operator. All training should be in accordance with the relevant health and safety regulations.
Reason: In the interests of public health and safety.
3. An emission monitoring programme shall be prepared by a suitably qualified professional and submitted to and agreed acceptable in writing by the Planning Authority, Prior To Commencement Of Development. This plan shall be implemented and continued for the duration of the lifetime of the development. As and when requested by the Planning Authority, an emission analysis shall be undertaken by an agreed independent professional (at the expense of the developer) and the results submitted to the Planning Authority within one month of such a request.
Reason: In the interests of public health.
4. The noise level arising from this development shall not exceed 55dB (A) Leq (1 hour) with a maximum peak of 65 dB (A) between 0800 to 1800 hours, Monday to Saturday inclusive, but excluding public holidays, when measured at adjacent dwelling. At all other times the noise level shall not exceed 45 dB (A) Leq (1 hour) measured at the same locations. No pure tones should be audible at any time.
Reason: In the interests of proper planning and development, residential amenity and to prevent noise pollution.
5. No signs or advertisements for the proposed facility shall be erected or displayed on or near the site.
An affidavit has sworn by the respondent in which he refers to the planning application to was made to the County Council. He indicates that following the receipt of the application technical reports were prepared by a veterinary officer, an environmental health officer, the chief fire officer and from an executive chemist.
The respondent points out that in addition to planning permission the second notice party will be required to comply with the requirements of the Waste Management Act, 1996 including obtaining a waste permit in accordance with the act. He says that any additional environmental matters will be dealt with during the course of the application for a waste permit. On the 9th May, 2000 the County Council as planning authority sought additional information pursuant to s. 33 of the Local Government (Planning and Development) Regulations, 1994 to which replies were received on the 17th May, 2000, including a copy of the application for a waste permit.
The respondent indicates that at the time of making the impugned decision he had before him:-
(a) a report of Sorcha Walsh, Assistant Planner dated the 29th June, 2000, endorsed by the Senior Executive Engineer and
(b) a report from the Senior Executive Engineer,
and he indicates that he considered the material in these reports. He indicates, as appears from the reports, that there were no objections to the proposed development from the executive chemist, the environmental health officer, the chief fire officer or
the veterinary officer. He indicates that it was the recommendation of the planning department that permission be granted subject to conditions.
The respondent indicates that when he received the initial s. 4 motion dated the 27th June, 2000 he arranged for the same to be circulated to each member of the Council. He indicates that a report dated 5th July, 2000 was circulated to each of the elected members of the Council and this is exhibited by him. In addition he points out that the planning file was made available to each of the elected members and was available at the meeting on the 10th July, 2000.
The respondent indicates that he had planning reports, which he duly considered, that the proposed development did not constitute sporadic development and that the same was not contrary to the County Development Plan and it was not in an areas of special control. He considered the technical reports that the proposed development would not affect amenity or views or special interests or the attractiveness of the County for tourism or tourism related employment.
He says that he considered the planning report and the technical reports which indicated that the proposed development would not cause serious or any air pollution. He refers to the fact that the second respondent was required to comply with the provisions of the Waste Management Act, 1996 and/or the Environmental Protection Agency Act, 1992 in relation to the risk of environmental pollution from the proposed development.
The respondent indicates that he had before him and duly considered technical reports which indicated that the proposed development would not be visible or prominent on the landscape and that it is to be located within an existing building in an existing farm complex which is not visible from the public road or surrounding areas. He concluded that the proposed development would not be an obtrusive feature on the landscape or be visible over a wide arc of views or would interfere with views and he had no information to the effect that the access road to the site was not suitable for the proposed development.
The respondent indicates that following the passing of the s. 4 motion he sought legal advice from the Council's Law Agent concerning the validity of the resolution passed on the 10th July, 2000 and was furnished with such advice on the 12th and 13th July, 2000. He was advised by the Law Agent that the resolution was invalid and that he was not bound by same. He states his belief that the elected members in passing the resolution took into account material which was extraneous
material above and beyond the proper planning and development of the area and beyond the matters to which the planning authority is restricted. The alleged extraneous material identified by the respondent is as follows:-
(a) the view expressed by a member that the proposed development was a private concern motivated by profit only and would mainly be used by people from the north of the County where the greatest pet population lives;
(b) the view expressed by another member that there is a need to support local people in this tourism and agricultural area;
(c) the view of another member that there was not sufficient demand for a pet incinerator and that no one had ever come to her for a pet incinerator and she did not consider that there was a large demand. This council is alleged to have referred to the reasonable price of land in the area as not being a reason for putting an incinerator there;
(d) the view expressed that medical waste would be incinerated at the proposed development;
(e) the view that local people must be listened to;
(f) the view of a member that he personally would not like to live near a pet incinerator;
The respondent indicates that at the meeting he advised the members that the proposed development did not contravene the Development Plan and he confirmed to the meeting that an official of the Council, the Executive Chemist had attended a number of pet crematoria in the United Kingdom. He further indicates that he informed the meeting that the applicant for planning permission, the second notice party herein, was not present at the meeting of the elected members of the Council on the 10th July, 2000. He indicates further that no technical reports were submitted by or on behalf of the elected members of the Council to the meeting dealing with the proper planning and development of the area in respect of any other relevant matters. He indicates his view that there were no technical reports supporting the decision to refuse permission at the time that the elected members passed the resolution.
The respondent concluded that he was not bound by the resolution passed on the 10th July, 2002 and he then arranged for the Acting County Secretary to write to each of the elected members by letter of the 13th July, 2000, with a copy of the legal advice from the Law Agent enclosed.
The respondent points out that the statutory two month period for adjudicating upon the application for planning permission expired on Sunday the 16th July, 2000 and he made the impugned decision in the exercise of the executive function of the council to grant planning permission subject to conditions, taking into account all relevant material including the technical and legal advice available to him.
The respondent indicates that his decision is under appeal to An Bord Pleanála and that the Board gave an undertaking to this Court on the 27th November, 2000 not to determine the appeal pending the determination of these proceedings.
The respondent indicates that no technical reports were made available to him prior to his decision of the 13th July, 2000 by the elected members of the Council or by any other person indicating that the proposed development was incompatible with food production or detrimental to the image of the area as a food production area. He further indicates that no material was made available to him prior to the said decision in relation to a serious reduction in the value of property in the area, or that the same was incompatible with tourism potential or tourism activity in the area or that the access road to the proposed development was inadequate or that the proposed development would be visually obtrusive.
With regard to the resolution passed by the elected members of the Council on the 20th July, 2000 the respondent indicates that he is advised that the same is not a motion within the meaning of s. 4 of the Act of 1955 and that it does not comply with the procedural requirements of the section and further he is advised that the same is not a valid resolution having regard to the County Management Acts, 1940 to 1994. An identical averment is made in relation to the resolution of the 3rd August, 2000 passed by the elected members and the further resolution of the 28th August, 2000. The remainder of the respondent's affidavit essentially consists of submissions and are proper matters for legal submission herein.
An affidavit has been sworn by the second notice party in which he indicates that he was not aware of the meeting of the members of the Council of the 10th July, 2000 at the time and that he was not invited either orally or in writing to make any submission to the meeting in relation to his planning application.
An affidavit has been sworn by Ms. Auveen Byrne, a consultant town planner on behalf of the applicant herein. She has inspected the planning file in the offices of the County Council and she inspected the vicinity of the development and she prepared a report on the 22nd November, 2001. She was asked to advise whether the
members of the County Council took account of improper considerations in the making of their resolution of the 10th July, 2000.
In her report she indicates that at the decision point there was evidence of suitably qualified technical officers to the effect that there would be no polluting emissions and there was no evidence to the contrary. She further expresses the view that visual impact would be minimal. She expressed the view that the issues of traffic congestion and the adequacy of the access to the development are material and were not properly dealt with in the application. She also expresses the opinion that the issue of services to the development and the adequacy of ancillary facilities were not properly dealt with. The witness had identified three references in the minutes of the meeting of the 10th July, 2000 which she believes could be construed as having a questionable relationship with planning matters, namely:-
- the reference to the applicant being a private concern motivated by profit;
- the reference to the price of land not being a reason for putting an incinerator in Redcross, but she adds that this could be construed as a statement that the matter of land values is not a planning matter;
- the reference to the possibility that the facility could be used for the disposal of medical waste is one outside the scope of the relevant planning application.
Ms. Byrne does not share the view of the Law Agent in relation to other utterances at the meeting being irrelevant matters. She concludes that the councillors largely confined themselves to planning matters. She indicates her view that the conclusions based on the considerations are, on the whole, at least debateable.
Ms. Byrne has identified other matters which lead him to the conclusion that the planning application itself is invalid. She expresses the view that the validity of the decision to grant planning permission is questionable. However, it appears that the basis for these conclusion, even if correct, were not the basis of the resolution of the elected members of the 10th July, 2000.
An affidavit has been sworn by Mr. Des O'Brien, formerly chief planning officer of the County Council in which he takes issue with a number of the views expressed by Ms. Byrne. However, this affidavit is largely argumentative in nature and contains matters which are properly the matter for submission herein.
An affidavit has been sworn by Nicky Kelly, a member of the Council who made the remark referred to at the meeting of the 10th July, 2000 in reference to the proposed development being one for profit. He has sought to put forward a benign construction to his remark and expressed the view that in this context the remark made by him was not inappropriate.
Elizabeth McManus, a councillor with the County Council has indicated the circumstances in which she referred to the lower costs of land in the Redcross area compared to Bray. It is indicated that this was in reference to a remark attributed to the second notice party at a public meeting.
Submissions
On behalf of the applicant reference is made in the first instance to the provisions of s. 4 of the Act of 1955 which provides:-
4. – (1) Subject to the provisions of this section, a local authority may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which the local authority or the manager can lawfully do or effect to be done or effected in performance of the executive functions of the local authority.
Counsel refers to the provisions of the Local Government Act which restricted the right of members of a local authority to pass a s. 4 motion insofar as it provided for a greater majority to vote in respect of such a motion that would otherwise have been the case.
Counsel refers to s. 26 of the Local Government (Planning and Development) Act, 1963 ('the Act of 1963') which authorises a local authority to grant a planning permission sought or to grant same subject to conditions or to refuse same. On this basis it is submitted that the Manager can comply with a s. 4 resolution if it is directed to him to do a particular act, namely to refuse planning permission for a proposed development.
Counsel submits that the issue arising in relation to the entitlement of the members of the council to pass such a s. 4 motion is one which constitutes an issue of law of substantial importance because it relates to how the elected members who are given power to act as a body can enforce their decision vis a vis the County Manager.
It is conceded that the power to make the decision is one for the Manager concerned but it is submitted that this can be at the direction of the members in the form of a s. 4 motion which may include a motion directing the Manager to refuse planning permission.
It is submitted that there is no precedent in regard to an action taken by the elected members in which they sought to enforce a resolution passed by them under the provisions of s. 4 of the Act of 1955 in the context of the Planning Acts.
Reference is made to the decision of the Supreme Court in the case of O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 where the County Manager was given a direction by the elected members to refuse planning permission for a proposed development. The Manager refused to comply with this direction and he granted planning permission, which decision was upheld by An Bord Pleanála on appeal. A third party, who had objected to the planning application thereafter sought to challenge the decision of the Board. Counsel submits that the question of the s. 4 motion was only considered as "a sidelight" in this case. Counsel submits that guidance is to be obtained from the decision of the Supreme Court in the case of P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701.
Counsel for the applicant submits that there is greater significance given to a s. 4 motion in the planning context as a result of the passing by the Oireachtas of the Local Government Act, 1991 ('the Act of 1991'), which while creating a higher hurdle to be crossed, gave express recognition to the role of such motions in the planning context. In this context reference is made to the specific requirements contained in s. 44 of that Act.
Counsel refers to the provisions of ss. 16 and 17 of the County Management Act, 1940 ('the Act of 1940') insofar as a distinction is to be drawn between the functions reserved to the elected members (reserved functions) and those reserved to the Manager and his authorised officials (executive functions) are concerned.
It is submitted that the councillors in passing the s. 4 motion of the 10th July, 2000 articulated reasons for the refusal of planning permission in precise terms, and treated the matter having regard to the proper planning and development of the area.
While the decision of the Manager is final it is submitted that the applicant in the form of the elected representatives had no other route to challenge the decision of the respondent other than in these proceedings or by way of an appeal to An Bord Pleanála. However, it is accepted that the Board could not address the issue arising
from the passing of the s. 4 motion and what is described as 'an assault' on the councillors' resolution as it is accepted that the efficacy of that resolution is not a planning matter which could be considered by the Board on any appeal to it.
Counsel refers to the obligation of a County Manager to advise the elected members in the context of a s. 4 motion and it is submitted that if consideration is to be given to the points raised by the respondent in his affidavit in these proceedings it will be apparent that he did not seek to advise the members appropriately.
In the case of P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 the elected members of Dublin County Council gave notice of their intention to consider a proposal for a direction pursuant to s. 4 of the Act of 1955, directing the county manager to grant the planning permission sought by the applicants. At a meeting of the County Council at which reports of the county manager (incorporating the views of county engineer and the roads department recommending refusal of the permission) were considered, the County Council, in purported compliance with s. 4 of the Act of 1955 directed the county manager to grant the permission. The county manager refused to comply with this direction in his belief that he was being asked to do something which the local authority could not lawfully do in the performance of its executive functions. The county manager purported to issue a decision refusing the application for planning permission. The applicants sought judicial review by way of certiorari to quash the decision of the county manager refusing the application and mandamus to compel the grant of the permission. The County Council was joined as a respondent by order of the High Court.
It was held by the High Court (O'Hanlon J.) in granting the application for judicial review that on the material available to the County Council it was open to the Council to reach a valid decision in favour of granting planning permission to the applicants.
While the court in that case recognised that a decision of a planning authority in the exercise of its discretion could be challenged if unreasonable in the sense that no reasonable authority could come to that decision. The High Court held that in the exercise of a statutory discretion, an administrative authority must be allowed considerable latitude and must be free to reach a decision contrary to professional advice once such advice is duly considered; that in the case of patent illegality the county manager would be entitled to and obliged to refuse to carry out the direction of the County Council.
The High Court indicated that the decision of the county manager in refusing the planning permission was in effect an order of the Council and therefore the Council was joined as respondents for the purpose of quashing this decision. The High Court also held that given the exceptional circumstances of the case the applicants were justified in seeking by way of judicial review to ascertain the entitlement of the county manager to refuse to comply with the directive of the County Council, without first exhausting the appeal procedures available under the planning legislation.
On appeal the Supreme Court affirmed the order of the High Court save for the fact that it set aside the order of the High Court directing the county manager to grant permission. The court indicated that the planning authority was bound to act judicially when taking a decision to grant or refuse planning permission and once the Council had acted judicially in reaching its decision, the county manager was obliged to carry out the direction as an executive duty and was not entitled to exercise a separate discretion as to whether he would obey the direction or not. If the decision of the County Council was unreasonable it was invalid and illegal and ought not to have been obeyed.
The Supreme Court held that the onus lay on the applicants to provide that the Council's decision was unreasonable having regard to the material upon which it was reached. In the circumstances the applicants had not discharged this onus. The court held that the permission sought constituted a material contravention of the development plan and, therefore, the county manager was under a duty to make an order pursuant to s. 26 sub-s. 3(c) of the Act of 1963. However, the Court held that it was no longer possible to order the county manager to carry out his functions under s. 26, sub-s. 3(c) as the relevant time limits had expired. The Court held that the County Council had failed to act judicially in reaching its decision in that the engineer's reports put the Council on notice of a material contravention of the development plan and consequently the Council ought to have given public notice of its intention to grant the permission. It was further held that An Bord Pleanála did not have jurisdiction to consider the legal validity of the actions of the county manager in refusing to comply with the directions of the County Council under s. 4 of the Act of 1955.
On behalf of the respondent it is submitted by Mr. Dermot Flanagan S.C. that the decision of the County Manager represents a decision of Wicklow County Council
and the decision in question is one which was made on the basis of an application to 'a planning authority'. Counsel submits that in essence the decision of the respondent was a decision of the County Council, which is an executive function. Counsel submits that the respondent in his capacity as manager is not a planning authority, that the application to this Court in purported compliance with the provisions of s. 82 (3) (A) of the Act of 1963 as amended suffers from a procedural infirmity insofar as the proper respondent is the County Council which is the planning authority in question.
Counsel refers to the fact that in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 the County Council was joined by the Court as a necessary respondent to the application challenging the purported decision of the county manager as planning authority. Counsel refers to the fact that that case preceded the enactment of the Local Government (Planning & Development) Act, 1992 which amended the Act of 1963 by inserting therein the provisions of s. 82 (3) (A).
Counsel refers to the Act of 1940 and the role of county managers under the Act. In addition to referring to the division between reserved functions and executive functions, counsel refers to the fact that under s. 19 the county manager acts by means of signed orders where he acts for the council of his county or an elective body. In addition counsel refers to the advisory functions of a county manager under s. 31 of that Act, including matters in respect of which the elective body for which he is manager requests the advice or assistance of such county manager.
With regard to the general authority given to local authorities, counsel refers to the provisions of s. 6 (6) of the Act of 1991which provides:
"(6) A local authority shall not, by virtue of this section, undertake or provide assistance for the undertaking of any activity that would prejudice or duplicate activity arising from the performance of a statutory function by any person in the functional area of the authority or that would, having regard to the activities or proposed activities of that person in relation to the area, involve wasteful or unnecessary expenditure by the local authority."
With regard to the identity of the applicant in these proceedings, counsel submits that there is no authority in law for a local authority to challenge a decision of itself and he submits that the impugned decision in this case is a decision which has the status of a decision of the County Council.
Counsel refers to s. 32 of the Act of 1940 which provides as follows:-
" (1) In every action or other legal proceeding, whether civil or criminal, instituted in any court of law or equity or against the council of a county, the county manager for that county shall act for and on behalf of such council and may do all such acts, matters, and things as he may consider necessary for the preparation and prosecution of defence of such action or other proceeding in the same manner in all respects as if (as the case may require) he were the plaintiff or the prosecutor or the defendant therein, and, where such action or other proceeding relates to the exercise or performance by such council of a reserved function of such council, such county manager shall, in the doing of any such act, matter, or thing as aforesaid, act with the express authority of such council, and such authority shall be deemed to have been given unless or until the contrary is shown.
(2) In every action or other legal proceeding, whether civil or criminal instituted in any court of law or equity by or against an elective body, the manager for such elective body shall act for and on behalf of such elective body and may do all such acts, matters and things as he may consider necessary for the preparation and prosecution or defence of such action or other proceeding in the same manner in all respects as if (as the case may require) he were the plaintiff or the prosecutor or the defendant therein, and, where such action or other proceeding relates to the exercise or performance by such elective body of a reserved function of such elective body, such manager shall, in the doing of any such act, matter, or thing as aforesaid, act with the express authority of such elective body, and such authority shall be deemed to have been given unless or until the contrary is shown."
Based upon the provisions of this section it is further submitted that there is no validity in the County Management Acts for these proceedings as currently constituted and insofar as these proceedings relate to the exercise or performance of the executive functions of the Council as a planning authority, the elected representatives do not have jurisdiction to challenge the decision of the County Council as planning authority. Counsel submits that under the County Management Acts, 1940 to 1994 the county manager shall act for and on behalf of the Council and the proceedings in the name of Wicklow County Council are not authorised by the Acts in the absence of a managerial order.
It is further submitted that the proceedings are in effect brought by individual elected members of the County Council in their personal capacity and not on behalf of the County Council and leave should only be granted in this matter on the basis that the elected members be joined as co-applicants in the proceedings or alternatively substituted for the present applicant.
By reference to the particular matters addressed by the members of the County Council, it is submitted by counsel that any reference to the personal considerations of the second notice party at the time of the meeting of the 10th July, 2000. In this regard counsel refers to Griffin v. Galway City and County Manager (Unreported, High Court, 31 October, 1990) in which Blayney J. held that the County Manager was not obliged to comply with a resolution of the county councillors in circumstances where he held that they had failed to disregard matters which were irrelevant to proper planning and development, being principally considerations which were personal to the applicant. Counsel further refers to Flanagan v. Galway County Council [1990] 2 I.R. 66 where Blayney J. reached a similar conclusion in relation to a resolution under s. 4 of the Act of 1955 directed to the County Manager to grant planning permission to the applicant for retention of an existing building for use as a commercial store.
Counsel further submits that the councillors in the instant case failed to afford the second notice party a right to be heard at the time of the passing of the resolution of the 10th July, 2000. In this regard counsel refers to portion of the judgment of Finlay C.J. in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701, where at p 719 of the report he stated:
"Apart from these statutory obligations, having regard to the principle which I have laid down concerning the obligation of the elected members to act in a judicial manner in considering the resolution for the granting of permission, it would have been necessary to ensure that all persons with a potential interest in the result of their deliberations should be given a fair and ample opportunity to be heard and their point of view properly and adequately considered."
In addition counsel refers to Eircell v. Leitrim County Council [2000] 1 IR 479 at p.494 where O'Donovan J. in giving judgment in a case where the elected members of the respondent purported to pass a resolution revoking a planning permission previously granted to the applicant in circumstances where the meeting of the elected representatives was convened without notice to the applicant and in
circumstances where the applicant had no prior intimation of the intention of the elected representatives to revoke the planning permission, stated:-
"…I am persuaded by the authority of several decisions of the Supreme Court given in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701; The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987] I.L.R.M. 36 and East Donegal Co-Operative v. Attorney General [1970] I.R. 317, that, when taking the decision as to whether or not to revoke the said grant of planning permission, the elected members of the respondent were obliged to act judicially and, in the context of this case, as I interpret those decisions, it is a fundamental requirement of justice that the applicant should have been given prior notification of the intention of the elected members of the respondent to consider the revocation of the said grant of planning permission and should have been afforded the opportunity to make submissions or representations with regard to the question as to whether or not the said grant of permission should be revoked."
Counsel addressed the minutes of the meeting of the members of the Council held on the 10th July, 2000 and submitted that illegitimate factors were taken into account. In this regard identified the following matters:-
(a) that other persons had been refused applications for building houses in the relevant area;
(b) that the application for planning permission was motivated by profit;
(c) that the facility, if developed, was likely to be used by persons in the northern part of the county with the greatest area of population;
(d) that the development would set an unwelcome precedent for the future;
(e) that the development was unlikely to be properly monitored by the local planning authority;
(f) the development would give rise to air pollution which is a matter specifically excluded from consideration by the local authority under the Environmental Protection Act, 1992.
Counsel submits that the several affidavits filed on behalf of the applicant members to discount in some way the irrelevant material do not render valid what was otherwise an invalid decision reached by the elected representatives.
Counsel refers to the grounds sought to be imposed by the s. 4 resolution passed by the applicant members and submits that no. 3 thereof was ultra vires as it touched on air pollution which specifically was a matter to be considered by the Environmental Protection Agency and was outside the scope of the local authority. In this regard s. 98 of the Environmental Protection Agency Act, 1992 refers. This section provides, inter alia, as follows:
"98.—(1) Notwithstanding section 26 of the Act of 1963, or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1991, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity—
( a ) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or
( b ) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,
and, accordingly—
(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;"
Counsel submits that a s. 4 motion may not be used to compel a Manager not to do any particular act, matter or thing and that it can only be used to direct the Manager to take some positive step. In this regard counsel adopts the words of Hogan and Morgan in Administrative Law in Ireland (3rd Ed.) at pp. 195 to 196 and further to the words of Keane in The Law of Local Government in the Republic of Ireland where the author states at pp.35-36:-
"It is submitted that s. 4 does not empower the elected members to direct the manager not to do a particular thing. The use in the section of the words 'any particular act, matter or thing' is significant; they appear to be associated with the use of a similar expression in s. 17 of the Act of 1940, which deals with executive functions. Sub-section (4) provides that
"all such matters and things … as are necessary for or incidental to the exercise or performance of the executive functions… shall … be done… by …the manager…"
It would seem to be a reasonable inference from this that the "act, matter or thing" referred to in s. 4 (1) of the Act of 1955 is some positive step connected in some sense with the discharge of the executive functions of the manager. The intention of s. 4 would appear to be to enable the elected members to require the manager to take such a step in circumstances where they, the elected members, consider it appropriate. This would seem to be borne out by the wording of s. 3 of the Act of 1955, which enables the elected members by resolution to preclude the manager from expending money on a particular purpose. This section would seem to be entirely unnecessary unless s. 4 is properly construed as being confined to resolutions requiring the manager to take a positive step."
Counsel submits that the resolution under s. 4 must be positive. He submits that as planning permission inures for the benefit of the land a refusal confers no benefit. Counsel submits that s. 4 is for the conferring of a positive benefit or right and that in the context of s. 4 and the planning acts a positive step envisages the granting of planning permission.
With regard to the approach of this court to the factual and legal matters arising on this application, counsel refers this court to the judgment of McKechnie J. in Kenny v. An Bord Pleanála (Unreported, High Court, 15th December, 2000) where at p. 9 of his judgment he stated, inter alia, as follows:-
"Whether or not and whichever, it seems to me that whilst obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed anticipate the long term result, nonetheless within existing limitations, I should, I feel make some evaluation of the factual matrix and should, where with certainty I can, form some view of the appropriate statutory provisions and the relevant and material case law."
Counsel submits that there is no evidence before this Court to show that proper planning matters were taken into account by the members in passing their
resolution. It is further submitted that there was a need for the members to comply with the requirement to give the applicant developer a right to be heard.
Counsel submits that the planning merits of the impugned decision are now before An Bord Pleanála and counsel submits that this court should exercise curial deference by allowing such matters to be addressed by the Board. Counsel submits that in the circumstances the issue between the members and the manager is a moot as there is now a valid and subsisting appeal. Counsel submits accordingly that on discretionary grounds this court should refuse the applicants the relief sought. In support of this submission counsel refers to Byrne v. Wicklow County Council (Unreported, High Court, 3rd November, 1994) where Keane J. considered the effect of the existence of a pending appeal to An Bord Pleanála against the impugned decision granting planning permission, and stated, inter alia, at p.13 as follows:
"It is conceded on behalf of the applicants that no matter what decision An Bord Pleanála arrived at, whether they refuse the permission, whether they grant the permission subject to conditions, whichever they do, the decision of the Planning Authority, it is not an exaggeration to say, vanishes into oblivion. It becomes merely a matter of history because the legislation says in the most unambiguous terms that the decision of An Bord Pleanála on an appeal annuls the decision of the Planning Authority as from the time the Board give their decision.
Now in those circumstances, even if the applicant established substantial grounds for questioning the validity of the decision, and I am not satisfied that they have not, it would be very difficult to see what useful purpose would be served at this stage by granting certiorari in respect of the decision which in any event will cease to have any legal validity once the Planning Appeal Board have reached their decision."
Keane J. concluded that in that case the proper course was to allow the appeal to proceed and he declined the leave to seek judicial review in the form of an order of certiorari in circumstances where he concluded that it would serve no useful purpose. He referred to the fact that in a series of cases judges in this jurisdiction had laid consistent stress on the undesirability of invoking certiorari in situations where there exists a comprehensive and elaborate planning appeal code where everyone's rights
are protected and where ultimately, if difficult legal questions arise, An Bord Pleanála have the right to seek the assistance of this court on questions of law.
Counsel for the respondent submits that this case is on all fours with Byrne v. Wicklow County Council.
Counsel further refers to Kennedy v. South Dublin County Council (Unreported, High Court, 17th December 1997) where O'Sullivan J. quoted with approval the decision of Keane J. in Byrne v. Wicklow County Council and noted that the Board may grant permission for a proposed development, notwithstanding that it might constitute a material contravention of the development plan.
With regard to the assertion of counsel for the applicant members that they were entitled to pass a resolution provided they did not take irrelevant matters into consideration, counsel questions the applicant's case which he understands means that this should be approached on the basis that the resolution was valid unless the Board on appeal considers otherwise. It is submitted that the Board will have all relevant material before it. Counsel submits that all the matters in issue in these proceedings can be addressed before the Board, including a legal issue.
With regard to the failure of the applicant members of the County Council to have regard to the advice of the council officials, counsel refers to portion of the judgment of Costello P. in Child v. Wicklow County Council [1995] 2 I.R. 447 at p. 452 where he stated:-
"What I have to consider today is a resolution passed in January, 1987, by the elected members of the Wicklow County Council contrary to the advice of the expert officials of the County Council. Now, it is of course conceded that the elected members of the County Council are not bound by the advice of the county engineer and the county medical officer. The elected members could decide not to take that advice but I think that there must be some basis for refusing to accept it. The elected members are not entitled just to ignore what the County Council's expert officials have said would be the effect of the s. 4 resolution, which seems to me to have been the position in this case. If the advice of the County Council's officials indicates that a proposed development would be contrary to the proper planning and development of the area, the elected members must have some basis for refusing to accept that advice: perhaps an opinion for another expert or a reasoned judgment as to why the advice of the expert officials is incorrect. Neither existed in this case."
Counsel submits that in the instant case no reason has been advanced as to why the expert advice before the Council was incorrect.
On behalf of the second respondent Mr. John Whelan S.C. in the first instance adopted the submissions previously made by counsel for the respondent and in particular referred to the fact that the second notice party had no prior notice of the meeting of 10th July, 2000. Counsel contended for a strict interpretation of s. 4 of the Act of 1955 restricted to motions of a positive nature. In addition counsel contended that the form of the notice of the resolution at the time was not in accordance with the requirement of the section.
In regard to the matters referred to by the members of the County Council, it is submitted that the extent of the concerns expressed were well outside bounds of what are strictly planning matters.
Counsel refers to Eircell v. Leitrim County Council [2000] 1 IR 479, where at p. 493 O'Donovan J. indicated that he did not consider "…fear, apprehension and opposition with the local community with regard to the proposed development, even accepting that that fear, apprehension and opposition only became manifest after the planning permission had been granted is, of itself, a proper planning consideration…"
In reply, counsel for the applicant submits that there are substantial grounds present in the instant case because in the first place the application is brought by the County Council itself, secondly it is submitted that the applicants have raised weighty grounds and counsel submits that while the County Manager and the County Council as planning authority under the Act of 1963 constitute one body, this does not mean that their functions are indivisible. Counsel submits that the law does not negate the capacity of councillors in their capacity as the County Council to bring such an application as is brought in the instant case. Counsel submits that the County Council must have jurisdiction and capacity to bring an application to the Courts which is in effect an application to vindicate the Council's exercise of power under s. 4 of the Act of 1955. Counsel submits that there must be a remedy to the County Council where the manager in a given case for bad reasons fails to conform with a s. 4 motion.
Counsel submits that if the elected members are correct then the manager's order is an unlawful order which purports to be a lawful order. Counsel questions the entitlement of a manager to stand over an unlawful order in particular where it is in defiance of a valid s. 4 resolution.
With regard to P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 counsel seeks to distinguish same on the basis that it was the developer and not the elected representatives who moved to the Court to quash the decision of the County Manager. Counsel relies upon the fact that in that case the court took the view that insofar as the matter was a planning matter the local authority should be joined. Further counsel seeks to distinguish Griffin v. Galway City and County Manager (Unreported, High Court, 31 October 1990) and Flanagan v. Galway County Council [1990] 2 I.R. 66 on the basis that in neither of these cases was there an application by the County Councillors.
With regard to the issue whether the second notice party was entitled to be heard, counsel submits that all planning decisions are made on paper and that there was no indication by the County Manager between the 10th and 13th July, 2000 of any failure to accord any such right. It is submitted that the decision of the 10th July, 2000 was one reached on the basis of the extent of the information available to the Council at the time. It is submitted that all of the submissions were available to the members at the time. Counsel submits that the affidavit of the respondent bears out that the second notice party was heard before the resolution of the 10th July, 2000. Counsel submits that insofar as the decision in Eircell was one to revoke a planning permission previously given that wholly different considerations applied.
With regard to the ambit of s. 4 of the Act of 1955 counsel submits that a positive step includes a direction to refuse planning permission.
With regard to the discretionary nature of the remedy available, counsel submits that jurisdictional issues arise in the instant case and that a similar approach should be taken in this case to that taken by this Court in O'Brien v. South Tipperary County Council (Unreported, High Court, 22nd October, 2002) where the court in the exercise of its discretion granted the applicants leave rather than refuse same on the basis of the then pending appeal to An Bord Pleanála.
With regard to the submission made on behalf of the second notice party, counsel observes that only this party raised an issue in regard to the form of the notice that was circulated at the time and observes that the same was accepted as valid by the County Manager insofar as he circulated same.
With regard to any issue whether the councillors confined themselves to strictly planning matters, counsel observes that a difference of opinion exists in this
regard on the affidavits before the Court and submits that this is a matter which should be properly be left to the substantive hearing of the applicants' motion.
Counsel submits that the councillors articulated reason in precise terms and had regard to their function under s. 26 of the Act of 1963.
Counsel refers to the affidavits sworn by the various members of the County Council in these proceedings and submits that it is clear that there was no dependence upon any personal matter or interest of a constituent or of the applicants themselves. In addition counsel submits that the councillors were entitled to engage in dialogue between themselves. It is submitted that provided they generally maintained discipline they should not be faulted.
With regard to the restriction on the consideration of matters connected with environmental pollution, counsel submits that the approach of the respondent is unreal insofar as they adopted a resolution which was valid and founded on s. 4. Counsel submits that the impact of s. 98 of the Environmental Protection Agency Act, 1992 is one that is debatable. Furthermore, counsel submits that the respondent was at the meeting of the 10th July, 2000 and had all the resources of the Council available to him.
With regard to the technical evidence available to the respondent, it is submitted that the resolution did not turn on any technical view of the matters at issue. Counsel submits that the real issue was whether the development proposed should be located in Redcross. Counsel submits that there was no need for the councillors to have technical evidence provided they had regard to proper planning reasons in their decision.
Conclusions
It is clear that if the applicant councillors are to be granted leave they must advance to this court substantial grounds for contending that the decision of the respondent county manager is invalid insofar as he considered the resolution of the applicant councillors to be invalid and not to be binding upon him.
The decision of the county manager will only be capable of being valid if he was entitled to disregard the s. 4 resolution. In this regard he indicates the basis upon which he rejected same.
As the minutes of the meeting of the 10th July, 2003 have been accepted by Councillor Doran, I am satisfied that in examining same it is possible to discern whether or not extraneous material was taken into account by the members of the Council in their determination of the planning application. The matters identified by the respondent are:-
(a) the view expressed by a member that the proposed development was a private concern motivated by profit only and would mainly be used by people from the north of the County where the greatest pet population lives;
(b) the view expressed by another member that there is a need to support local people in this tourism and agricultural area;
(c) the view of another member that there was not sufficient demand for a pet incinerator and that no one had ever come to her for a pet incinerator and she did not consider that there was a large demand. This councillor is alleged to have referred to the reasonable price of land in the area as not being a reason for putting an incinerator there;
(d) the view expressed that medical waste would be incinerated at the proposed development;
(e) the view that local people must be listened to;
(f) the view of a member that he personally would not like to live near a pet incinerator;
While a number of the affidavits filed on behalf of the applicant councillors have sought to put a benign construction on some of the expressions of opinion at the meeting I am satisfied that the respondent was entitled to consider the views expressed that there was not sufficient demand for a pet incinerator and that medical waste would be incinerated at the proposed development to be irrelevant matters to a proper consideration of the planning application.
I am furthermore satisfied, having regard to the technical reports before the Council and in particular that from the environmental health officer, that if a decision was to be taken in opposition to the views contained in the technical reports that it would have been necessary for the councillors to have evidence to support their contention and to reject the technical advice given to them. In this regard I am satisfied that the judgment of Costello P. in Child v. Wicklow County Council [1995]
2 I.R. 447 at p. 452 and the words already quoted herein are apposite, in particular where he indicated;
"If the advice of the County Council's officials indicates that a proposed development would be contrary to the proper planning and development of the area, the elected members must have some basis for refusing to accept that advice: perhaps an opinion from another expert or a reasoned judgment as to why the advice of the expert officials is incorrect."
In this particular case the technical reports suggested that the proposed development would not have the adverse environmental and health impact contended for and it is clear that the councillors did not have any other expert opinion at the time or any reasoned judgment to reject the opinion furnished.
While Councillor Doran has indicated in his affidavit that one consideration at the time was that the proposed development constituted a material contravention of the Wicklow County Development Plan, it is clear that the respondent had advice available to him to the contrary and I note that Ms. Auveen Byrne has refrained from concluding that the proposed development was in material contravention of the Development Plan, although she expresses the opinion that the proposed development was not adequately tested for compliance with the requirements of the Development Plan.
With regard to the third ground advanced by the elected members of the Council in their resolution of the 10th July 2000 namely:-
"The proposed development is likely to cause serious air pollution because of the nature of the development, substances involved and the prevailing micro-climate of the area and no evidence has been submitted to the contrary."
I note that Ms. Auveen Byrne states in her report that in her opinion the Councillors' own technical advisors had reported to the contrary and she expressed the view that it was difficult to see how this reason for refusal was arrived at.
I am satisfied that in relying upon this ground of refusal the applicant councillors had no basis for refusing to accept that advice either in the form of perhaps an opinion from another expert or a reasoned judgment as to why the advice of the expert officials was incorrect. I am furthermore satisfied that in relying upon this condition as a basis for refusing planning permission the applicant councillors failed to have regard to the restriction contained in s. 98 of the Environmental Protection Agency Act, 1992 in relation to the risk of environmental pollution from
the proposed development and in this regard I am satisfied that the sixth matter identified by counsel for the respondent as the basis upon which he considered the resolution of the applicant councillors to be invalid, namely, "the development would give rise to air pollution which is a matter specifically excluded from consideration by the local authority under the Environmental Protection Act, 1992." was a ground sought to be relied upon by the applicants from which they were precluded to have regard by reason of the provisions of s. 98 of the Act of 1992.
In light of these conclusions, I am satisfied that there was material before the respondent which entitled him to conclude that the resolution arising from the s. 4 motion was invalid and was not binding upon him and in this regard he clearly had regard to the advice from his Law Agent. While there is clearly some doubt as to whether all of the matters relied upon would have entitled the respondent to disregard the motion passed by the elected members, I am satisfied that there was a clear basis for the decision taken to consider the same to be invalid and on this basis to proceed to consider the application for planning permission. I am satisfied that in this application the applicant councillors have not established substantial grounds to show that this conclusion of the respondent was incorrect and accordingly, I am satisfied that the manager was entitled to treat the s. 4 motion as being invalid and not binding upon him.
Having reached this conclusion, it is not strictly necessary for me to consider the ambit of s. 4 of the Act of 1955 and whether it permits the passing of a motion directed to a county manager to refuse planning permission in any given case. I believe that the matter is arguable but that the view expressed by counsel on behalf of the respondent is one which, on balance I would be inclined to adopt as correct, namely that a s. 4 resolution may not direct a county manager to refuse to grant planning permission. However, I expressly do not decide this case on this basis and I note that had this been the view of the respondent at the time when he received the s. 4 motion that he would have been precluded from circulating same and convening a meeting for its consideration.
While it is suggested that this court should disregard views expressed at the meeting of the 10th July, 2000 and consider the terms of the resolution passed at the time and the reasons advanced for same, I am conscious of the fact that Blayney J. in Griffin v. Galway City and County Manager (Unreported, High Court, 31 October, 1990) and Flanagan v. Galway County Council [1990] 2 I.R. 66 had regard to the
minutes of the meetings at which the s. 4 motions had been passed in reaching his conclusion that matters other than proper planning and development considerations had been taken into account in the passing of the resolutions. On this basis I would have to conclude that at least some of the utterances at the meeting of the 10th of July, 2000 show that irrelevant considerations were taken into account. I am satisfied that the affidavits put before this court by certain of the councillors have explained their utterances and they have indicated that they did not take irrelevant considerations into account.
Having reached the conclusion that the respondent was entitled to reject the terms of the resolution of the 10th July, 2000 as invalid, I am satisfied that the grounds advanced by the applicant councillors in this application do not amount to substantial grounds to enable this Court to grant leave to challenge the impugned decision on the grounds advanced.
I am furthermore conscious that the decision of the respondent is currently under appeal and I believe, insofar as any issue may arise with regard to the correctness of the decision of the respondent in planning terms, that such may be advanced in the appeal to An Bord Pleanála, provided such issue has been raised on the appeal. In this regard I am conscious of the observations of Ms. Auveen Byrne but I refrain from expressing any view on her observations insofar as they may form part of the material to be advanced to the Board.
With regard to the necessity or otherwise to have put the second respondent on notice of the resolution and the meeting, I am not satisfied, assuming the resolution itself to have been valid and provided that the consideration of the planning application was confined to the matters on the planning file, that it would have been necessary to give express notice to the applicant for planning permission. I believe that the decision in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989] I.R. 701 and the considerations in regard to the necessity to give public notice arose from the fact that the proposed development was considered to amount to a material contravention of the development plan. Further with regard to Eircell v. Leitrim County Council [2000] 1 IR 479, I believe that the observations of O'Donovan J. related in particular to the fact that the proposal in question was one to revoke a planning permission previously granted.
With regard to the identity of the applicants in this case, I am satisfied that had I granted leave to challenge the planning decision at issue that the correct respondent
in that regard should be Wicklow County Council. I believe that while there appears to be no precedent for an action of this nature between the elected representatives on the one hand and the county manager on the other, that it would be appropriate, especially in the planning context, if such an action was taken by the members in circumstances where they are named individually. Had I been disposed to grant the leave sought in this case I would have been happy to amend the title in an appropriate manner and I wish to make clear that in reaching my decision in this case I have not done so on the basis of the manner in which the action has been entitled.
In conclusion I refuse the leave sought.