THE  HIGH  COURT

RECORD NO. 2002 No. 579SP

IN  THE  MATTER  OF  

SECTION 5 OF THE LOCAL GOVERNMENT (PLANNING

AND DEVELOPMENT) ACT 1963

AND

IN THE MATTER OF

A REFERENCE TO AN BORD PLEANALA

BETWEEN

GLANCRE TEORANTA

PLAINTIFF

AND

SEAMUS CAFFERKEY, LAURENCE  HOWARD, 

DIETMAR KRUGER, DIANNE NOUGHTON, MYLES 

MANGAN, JOHN LINDSAY, MARY TOGHER,

 MARY FINLAY GEOGHEGAN

DEFENDANTS

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

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

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

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

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

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

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

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

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

Issue 1
The Local Government (Planning and Development) Act 1963 section 5 as amended by the Local Government (Planning and Development) Act 1976 section 14 provides as follows:-

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

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

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

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

Accordingly where the Court is given an appellate jurisdiction it must construe the words used by the Legislature to see whether the Court has power to substitute its own opinion for that of the decision maker if it considers that the impugned act was wrong on the merits and not merely wrong in law.  In Dunne v Minister for Fisheries and Forestry Costello J. started from the premise that the Oireachtas in conferring the appellate jurisdiction must have intended that the jurisdiction on appeal should be wider than the Court’s powers when exercising its inherent jurisdiction at common law of review.  He had regard to the fact that the section under consideration there did not expressly limit the appeal to one on a point of law.  Adopting this approach in the present case I am satisfied that the Local Government (Planning and Development) Act 1963 section 5 confers upon the High Court a full power of appeal and not some more limited form of review.  There is nothing in the wording of the section to suggest any restriction and in these circumstances the High Court has full appellate jurisdiction.  The issue as to whether development is or is not exempted is one which the Legislature clearly regarded as one within the competence of the Courts in enacting the Local Government (Planning and Development) Act 1976 section 27 where just such an issue regularly arises.  To suggest otherwise in relation to the Local Government (Planning and Development) Act 1963 section 5 would create an inherent contradiction within the planning code.  See also Esat Digifone Limited v South Dublin County Council 2002 3 I.R. 585 at 592 – 593 where the approach in Orange Limited v Director of Telecoms (No 2) 2000 4 I.R. 159 was discussed by Kearns J. but not followed and with whose approach I agree.  I have particular regard to the view expressed by Barron J. in Orange Limited v Director of Telecoms (No. 2) at page 238. –

“In my view the test for competition cases cannot be a guide for other codes”.

In Dodd v Minister for Fisheries (1934) I.R. 291 the Court was concerned with the appellate provisions of the Fisheries Act 1925.  The Court considered whether such appeal should be confined to a discussion of the case on the material presented to the Minister and on foot of which the bye law had been made or whether the appeal should be regarded as a re-hearing on such evidence as the parties interested might think proper to submit.  That Judgment was considered by Costello J. in Dunne v Minister for Fisheries and Forestry 1994 I.R. 230 at 239.  Costello J. said –

“I consider that the effect of the Judgment in Dodd’s case is clear.  The Court held that, in considering an appeal under section 28 of the Act of  1925 against a bye law which a Minister had made after a public inquiry, it was desirable that the appeal be heard only on the material available to the Minister.  However if the material is not made available, then the Court has jurisdiction to hear evidence itself and to decide the appeal in the light of that evidence.  But it does not follow that, if the preferred procedure is adopted, the Court could not consider the merits of the case and is confined to considering whether the Minister had acted in violation of some legal principle.  The latter part of the Judgment makes it clear that, in deciding whether to annul or confirm a bye law, the Court (like the Minister) must be satisfied that the bye law was expedient for the more effectual Government management etc of the fisheries in question.”

In exercising its discretion as to whether further evidence should be admitted on an appeal the High Court should adopt the practice of the Supreme Court under the Rules of the Superior Courts 1986 Order 58 Rule 8.  In B v B 1975 I.R. 54 at 65 Walsh J. said –

“If in the opinion of this Court on the hearing of any appeal the examination of further evidence by this Court is necessary or desirable then, in my view, the Court has ample jurisdiction within its appellate function to allow the appeal to be conducted on that basis.”

At page 79 of the Report McLoughlin J. said –

“…but where an appeal brings an Order of the High Court before this Court to determine whether such Order should stand or be reversed (in whole or in part), or be amended, or to direct a new trial, this Court would clearly have jurisdiction to receive such evidence as it considers necessary for such determination.  The jurisdiction is most frequently exercised in favour of a party to an appeal where circumstances have changed since the original hearing where basic assumptions common to both sides had been falsified by subsequent events particularly if this had happened by the act of the Defendant.”

See also Fitzgerald v Kenny 1994 2 I.R. 383.

In  Balkan Tours Limited v The Minister for Communications 1988 I.L.R.M. 101  the High Court (Lynch J.) was dealing with the Transport (Tour Operators and Travel Agents) Act 1982 on an appeal under section 9 thereof and the Court admitted further evidence.   At page 107 Lynch J. said –

“It seems to me that subsection (4) envisages that the High Court is to ascertain all the relevant facts of the case whether they were before the Minister or not and to give effect to them.  There is in particular one aspect of the case which had been clarified before me and which was not clarified for the Minister and is of crucial importance.”

However at the same page Lynch J. noted that on proceedings by Special Summons it is quite unusual that the Affidavits to be used in support of a Special Summons will expand and give greater detail than there was before the commencement of the proceedings because the Plaintiffs in such special circumstances will by then have the assistance of legal advisors to explain more fully and accurately what is required by the relevant law.

I am satisfied that this decision is an illustration that on an appeal additional evidence should in general be admitted only where it is necessary or desirable in the interests of justice rather than authority for the proposition that on an appeal of this nature such evidence should be admissible without the party wishing to adduce the same satisfying the Court of the necessity or desirability of it being admitted.

The Plaintiff in this action wishes to have in evidence an Affidavit sworn by Brian Archer subsequent to the decision of An Bord Pleanala.  In paragraph 2 of the Affidavit he avers as follows –

“I have been retained by and on behalf of the Plaintiff Glancre Teoranta herein and in and about the reference to An Bord Pleanala herein.  More specifically, I have been asked by them to furnish an up to date report on my views and opinions on the report of the Inspector herein, and the conclusions drawn by him.  I have so prepared an up to date report, upon which marked with the letter BA1 I have signed my name prior to the swearing hereof.  I say and believe that this said report accurately sets out my views and opinions on the said Inspector’s report.  For the reasons expressed therein, I say and believe that the Inspector erred in his report and conclusions.  I say and believe that it is clear from the Bord’s Direction that An Bord Pleanala acted on and accepted the report and views of the Inspector and consequently also erred.”

I have considered the report of Brian Archer of the 6th May 2003.  In it he considers the Inspector’s report and considers whether it was reasonable, was based on a proper interpretation of planning law and regulation, whether it was perverse or based on some prejudice.  It is in effect the opinion of a planning expert of his understanding of the law applied to the Inspector’s report and on the merits which are matters for the Judge who will hear the appeal.  It does not purport to give evidence of a factual nature of any matter arising subsequent to the decision of An Bord Pleanala.  I find nothing in the same which could be described as evidence necessary or desirable in the interests of justice in order to enable the High Court to exercise its appellate jurisdiction.  Each and every point made in the report, it seems to me, can be made by way of submission.

Having regard to my conclusions as to the nature of the appeal permitted by the statute and the basis upon which the jurisdiction to admit additional evidence on an appeal should be exercised I hold that the Affidavit of Mr. Archer is not admissible on this appeal and that the issue before the Court should be determined upon the basis of the material which was before An Bord Pleanala.

Issue 2
Having regard to my decision on Issue 1 this issue does not arise.

Issue 3
In considering Issue 1 I have trespassed into this issue and relevant to this issue are the decisions in Dunne v Minister for Fisheries and Forestry and Esat Digifone Limited v South Dublin County Council.  The test it seems to me must be that which is applied to the same issue coming before the Court on foot of an application pursuant to the Local Government (Planning and Development) Act 1976 section 27.  In Galway County Council v Lackagh Rock 1985 I.R. 120 at 127  Barron J. said –

“To test whether or not uses are materially different, it seems to me, that what should be looked at are the matters which the Planning Authority would take into account in the event of a planning application being made either for the use on the appointed day or for the present use.”

The approach adopted in Orange Limited v Director of Telecoms (No.2) 2000 4 I.R. 159 is appropriate to the code with which the Court was there concerned:  however as Barron J. pointed out in his Judgment at page 238 the test for competition cases cannot be a guide for other codes.  The approach which the Court has adopted in relation to appeals pursuant to section 5 of the 1963 Act has been consistent in that the appeal took the form of a re-examination from the beginning on the merits of the decision appealed from with a view if appropriate to the substitution by the High Court of its adjudication for that of the Minister or An Bord Pleanala. See Esat Digifone Limited v South Dublin County Council, Readymix (Eire) Ltd v Dublin County Council (Supreme Court) Unreported 30 July 1975, McMahon v Dublin Corporation 1996 3 I.R. 509.  It seems to me that this jurisprudence is too long established for it now to be disturbed in favour of the approach in Orange Limited v Director of Telecoms (No. 2).  Accordingly on the hearing of the appeal the Trial Judge should consider the evidence which was before An Bord Pleanala and applying the test enunciated by Barron J. in Galway County Council v Lackagh Rock have regard to matters which a planning authority would take into account in determining the proper planning and development and the preservation of amenities the objectives set out in the preamble of the Act of 1963.

Having regard to the foregoing my directions are as follows:-

1.	The appeal is to proceed on the basis of the evidence before An Bord Pleanala on the reference exhibited in the Grounding Affidavit of Michael Murphy sworn on the 29th November 2002. 

2.	In determining the appeal the Court shall consider the said evidence de novo and adjudicate on the question referred to An Bord Pleanala on the merits.