The Gazette 1993

GAZETTE

APRIL

1993

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

XJS

, to clearly establish the

exclusion of compensation.

Constitutional Issues

The Supreme Court in

Developments

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.

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

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

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

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

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

" . . . to

protect

the safety of the

public using the road. To put the

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

danger

to public safety."

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

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"

because

" . . . speed is a word which would

normally be understood by most

people as being associated with public

safety"

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

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)

104