The Gazette 1992

GAZETTE

JULY/AUGUST 1992

The Obl igation to Give Rea sons for

Administrat ive Dec i s i ons

Part 2

By Maurice Collins BL

The position in Ireland

In Ireland, even where an obligation

to give reasons has been imposed on

decision makers by statute or by

statutory instrument, no attempt has

been made to indicate what degree

of explanation is thereby required.

Most of the relevant statutory

provisions refer solely to "statements

of reasons" or "grounds" and most

of the decided cases deal with the

existence or non-existence of a

common law obligation and as a

result, are concerned with the refusal

of administrators and decision-

makers to give reasons for their

decisions rather than with the

question of whether or not their

given explanation was adequate.

However, in a number of recent

cases, the Superior Courts have

considered the adequacy of stated

reasons in particular circumstances.

Moreover, there is also a wealth of

UK case law concerning similarly

imprecise obligations to state reasons

and the adequacy or otherwise of

such statements.

The approach of the Supreme Court

Breen

-v-

The Minister

for

Defence

(1990) has already been

referred to.

The issue arose again

in the context of a decision of An

Bord Pleanála in

O'Keefe

-v-

Bord Pleanála

(1991).

Relevantly,

the action concerned a decision of .

the Board to grant planning

permission, subject to a number of

conditions, for a large and high-

powered radio mast in County

Meath, despite the recommendations

to the contrary of the Inspector who

had conducted the oral enquiry on

behalf of the Board and the

conclusions of the experts

commissioned by the Board to

consider the technical aspects of the

application. The reasons stated for

allowing the appeal was the Board's

Mau r i ce Collins BL

satisfaction that the development

would not be contrary to the proper

planning and development of the

area, provided it were carried out in

accordance with the stated detailed

conditions (for each of which, in

accordance with the regulations,

separate reasons were given).

It was argued by the plaintiff that

the stated reason for granting the

planning permission was not in

reality a reason at all, but merely a

statement of the threshold

requirement for granting

any

planning permission - i.e. a

statutory

sine qua non.

Expressed in

the language used above, the reason

provided by the Board may be said

to have been the ultimate fact of the

decision-making process, which

required justification by reference to

the factual background to the

application and the relevant

principles of law. The decision, the

plainfiff argued, was void for non-

compliance with the relevant

statutory provisions requiring a

statement of reasons to be given.

The Supreme Court, per Finlay CJ,

accepted this submission - at least

insofar as it concerned cases where

the Board's decision ran contrary to

the recommendation of its own

inspector. However the Court held

that the reason for the decision

should be looked at in combination

with the conditions imposed and the

reasons given for their imposition,

and continued:

"Approached in that way, I am

satisfied that the entire of this

document sufficiently identifies the

reasons by which the Board reached a

decision to grant this particular

planning permission subject to these

particular conditions."

At no point in

O'Keefe

does the

Court attempt to establish by

definition or description the extent

of the obligation to give reasons

imposed by the relevant statutory

provisions. No reference is made to

the rationale for imposing the

obligation or to its desired function

and effect. The Court, per Finlay

CJ, explicitly rejected any attempt to

link the content of the statutory and

common law obligations, a rejection

that loses much of its force when

one considers the entirely vague and

non-specific nature of the statutory

duty at issue in

O'Keefe

itself. It is

not immediately apparent why the

Chief Justice's own consideration of

the common-law obligation to give

reasons in

Creedon

could not assist

the Court in

O'Keefe,

particularly as

it must be the case that the function

and rationale of the obligation is the

same in each case and

consequentially, a similar content

must be expected to follow.

The obligation on An Bord Pleanála

to provide reasons for its decisions is

clearly distinct from the obligation

to give reasons for any conditions it

may impose (in fact the former is

imposed by section 26 (8) of the

1963 Act while the latter was not

imposed until the adoption of the

1977 Planning and Development

Regulations SI6J/1977 in particular

Article 48 thereof). Given the

accepted inadequacy of the reasons

for the decision (and the consequent

non-compliance with section 26 (8)),

it is difficult to understand how the

reasons given for imposing the

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