The Gazette 1993

APRIL . 1993

GAZETTE

matter another way, the hazard referred to in the reason can only, having regard to the other factors stated in the reason, be a hazard or danger to public safety." 11 With respect, it does not automatically follow that the protection afforded will be commensurate with the potential danger. As stated before, every single additional car which is introduced into the traffic stream creates a risk to road safety - so to prevent this addition, by denying planning permission, does to a certain extent enhance road safety. But the potential danger must cross a certain threshold before the exigencies of the common good can justify the imposing of an uncompensated restriction on a landowner's property rights. The reasoning behind Egan J's dissent is more attractive, although he too fails to refer to the constitutional issues. He states that the use of the term traffic hazard on its own ". . .is not synonymous with public safety even with the additional of words "substandard in width and alignment" and reference to "additional turning movements which it would generate". He emphasizes the absence of the word " spe ed" 12 because " . . . speed is a word which would normally be understood by most people as being associated with public safety" 13 Egan J's distinction between traffic hazard simpliciter and a traffic hazard amounting to a danger to public safety is to be welcomed. However, the determination of the meaning of the planning decision as a question of fact with the subsequent concentration on public perception of the reason for refusal is unfortunate. The meaning of the words as understood by the public should not go to the legal issue of whether or not the reason for refusal is capable of operating to exclude compensation but rather to the separate question of whether or not

substandard in width and alignment is sufficient to trigger Section 56. It is submitted that this factual approach is incorrect. The stated reason may be valid to deny permission but the question of compensation requires the determination of a constitutional issue. The key term to be interpreted is traffic hazard. This term has a very board literal meaning - every single additional car which is introduced into the traffic stream makes its own tiny contribution to the traffic problem. However this in itself is not sufficient to justify the exclusion of compensation. The meaning can be interpreted in the light of the word obstruction which implies a serious and unreasonable disruption to the highway. This sense of unreasonableness is imported into the phase traffic hazard by its juxtaposition with obstruction. The use of the phrase endanger public safety supports the need for a grave and unacceptable risk. The judicial definition of traffic hazard was hinted at in the High Court in the decision in Sharpe -v- Dublin County Manager 9 as requiring the: . . . the creation of a traffic hazard of a character different from the hazard created whenever any new road links up with another one and amounting in fact to a public nuisance''. This decision intimates that the traffic hazard must be so serious as to create a situation in the order of a public nuisance. The case of Hassett -v- O'Loughlin [0 is illuminating in this context; it was held there that: "A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes the use of the highway unsafe or dangerous to the public" It is clear that the legal definition of traffic hazard is a narrow one. Yet the majority in the Supreme Court applied an over-generous test. Finlay CJ mistakenly equates protection with danger stating that the refusal is intended

ignorant of the legal consequences of its stated reasons. It is unfair to leave planning applicants in any doubt as to their entitlement, if any, to compensation. It should require more compelling reasons than those advanced by the Supreme Court to undermine legal certainty by displacing the burden placed on planning authorities, by the decision in XJS , to clearly establish the exclusion of compensation. treats the issue of whether or not a stated reason for refusal comes within the scope of Section 56 as a question of fact. It merely requires the court to make a common-sense appraisal of what the real reason is. It is submitted that this approach is incorrect. The Planning Acts involve a restriction on the use of land and hence an interference with the landowner's constitutional property rights. The failure to provide compensation for such restriction will be unconstitutional if it represents an unjust attack on these property rights. 8 Each of the statutory non compensatable reasons thus comprehends a specific situation where the permission sought is objectionable to the exigencies of the common good. A subtle dichotomy exists between those reasons for planning decisions which are objectively reasonable and hence valid to deny permission and those reasons which, as a matter of constitutional law are sufficient to exclude compensation. The Supreme "A subtle dichotomy exists between those reasons for planning decisions which are objectively reasonable and hence valid to deny permission and those reasons which, as a matter of constitutional law are sufficient to exclude compensation." Court examines the scope of the phrase traffic hazard as a question of fact and finds that the juxtaposition of that phrase with a description of the location of the proposed development on a road which is Constitutional Issues The Supreme Court in 85 Developments

this legal effect is adequately communicated to the planning

applicant by the planning decision - the result needs to be set out in the (Cont'd on page 106)

" . . . to protect the safety of the public using the road. To put the

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