The Gazette 1988

GAZETTE

OCTOBER 1988

The applicant was suspended from duty.

A n investigation was carried out and the

applicant was dismissed at its conclusion.

The Court noted that the first investigation

into the complaints by the Supervisor would

not have resulted in action in the nature of

a suspension.

The Board's case for dismissal was that

the applicant was lucky to have been re-

instated after his dismissal in February and

t h at f o l l o w i ng the i n c i d e nt w i t h his

Supervisor and the complaints from the

nurses his dismissal w as a u t oma t i c,

particularly having regard to the warning

about future conduct w h i ch he received

w h en he was re-instated in March.

The Court considered that the reasons for

the dismissal were more complex than those

stated by the respondents. It took the view

that the clash between the applicant and his

Supervisor had a significant bearing on the

dismissal.

H e l d That the dismissal of the applicant

was not wholly for the misconduct alleged

by the Board; that w h en such matters were

not relied upon to justify the dimissal or

tested to establish whether reliance upon

any of them was justified the Court was not

prepared to hold that the misconduct alleged

was the whole or main reason for the

dismissal as is required by section 6(1) of the

Unfair Dismissals Act 1977; that the

dismissal of the aplicant was consequently

unfair.

Locke -v- Southern Health Board (per Barron

J) 5 November

1987 -

Unreported

DECLAN MADDEN

LOCAL GOVERNMENT (PLANNING &

DEVELOPMENT) ACT 1963 - 1983

RIGHT OF OBJECTOR TO RECEIVE

I NFORMAT I ON FROM AN BORD

PLEANALA

Monarch Properties Ltd. applied for planning

permission for housing at Carriglea Park,

Dun Laoghaire adjoining the Sefton Estates.

Their plans envisaged a roadway from

Carriglea Estate through Sefton Estates and

on to Rochestown Avenue. The application

by Monarch was opposed by the Sefton

Residents A s s o c i a t i o n, of w h i c h the

prosecutrix w as C h a i r w oma n. On 26

September 1985 Dublin County Council

refused the application.

Monarch appealed the decision of the

Planning Authority to A n Bord Pleanala on

2 2 October 1985. By letter dated 19

November 1985 they set out 'the detailed

grounds of the appeal'. That letter was not

c i r c u l a t ed to t he S e f t on R e s i d e n ts

Association but they became aware of the

appeal and a Planning Consultant retained

by the Association, Mr. Brian Meehan,

applied to the Board for a copy of the

grounds and was furnished w i th them. In a

lengthy memorandum to the Board dated

1 9 th D e c e m b er

1 9 85 Mr.

M e e h an

c omme n t ed in detail on w h at he described

as 'the brief grounds of appeal' submitted

by Monarch and contended that those

grounds of appeal 'represent a rather

simplistic and inaccurate interpretation of

the planning situation wh i ch pertains to this

particular area'. By letter dated 13 February

1986 Monarch made additional submissions

in relation to the grounds of appeal and again

that letter was not circulated by the Board

to the Sefton Residents Association nor did

they become aware of its contents until after

the determination of the appeal. The

Association did receive a copy of a letter

dated 13 April 1986 written on behalf of the

Residents of Ardmore Park Dun Laoghaire

w h o were supporting the appeal by Monarch

Properties Limited and Mr. Meehan made a

short and he said, inadequate response, by

letter to the Board. In an affidavit Mr.

Meehan set out the lengthy submission

w h i ch he would have made in response to

the additional submissions made on behalf

of Monarch had he been aware of them. On

7 May 1986 A n Bord Pleanala granted

permission for the development of the

Carriglea Estate.

The prosecutrix obtained a conditional

Order of Certiorari to quash the decision of

7 May 1986 on the grounds that the Board

had purported to adjudicate on the appeal

without (a) furnishing all submissions made

on behalf of Monarch to the prosecutrix so

as to enable her to make submissions in

relation thereto and (b) in purporting to

adjudicate on the appeal brought by

Monarch w i t h o ut first ensuring that all

interested parties had an opportunity of

making submissions and representations

relevant to their considerations including

p r o s e c u t r i x. The Co u rt r e v i e w ed the

obligations of the Board under paragraph 38

of the Local Government (Planning &

Development) Regulations 1977 and noted

that on the face of it an objector w h o se

objection had been upheld and accordingly

had no cause to appeal did not fall within

the definition of 'a party to an appeal'

withing the meaning of paragraph 35(2) and

accordingly was not a person w h o was

entitled under paragraph 4 0 to be given

copies of observations made in writing to the

Board by persons w h o were parties to the

appeal. The Court noted that the contention

that there was no right to object in advance

to the granting of a planning permission and

that the only right was to appeal a decision

was rejected by the Supreme Court in the

case of the

State (Stanford & Ors) -v- Dun

Laoghaire Corporation & Others

(unreported,

2 0 February 1981) and that the argument

that a successful objector had no

locus

standi

to challenge a planning permission

granted contrary to the principles of

Constitution and natural justice was rejected

Law -v- the Minister for Local

Government

and Traditional Homes Ltd.

High Court (per

Deale J., 3 0 May 1974 unreported.) The

Court took the view that if an objector had

a right to maintain a case in the Civil courts

that objector should have an equal right in

justice to be heard as a respondent or notice

party in the case of an appeal to an Bord

Pleanala and referred to the case of the

State

(Coras

iompair

Eireann)

and An

Bord

Pleanala

(Supreme Court, 12 December

1984) where the Court appeared to take the

view that a successful objector wo u ld be

entitled to be a party to an appeal to An Bord

Pleanala. The Court noted that Coras lompair

Eireann were in a special position because

A r t i c le 6 5 of t he 1 9 77 Re g u l a t i o ns

designated t h em as a 'public authority' for

the purpose of Section 5 of the Local

Government (Planning & Development) Act

1976 and that the Board were bound to

maintain as the Supreme Court held 'an

informed liaison' w i th Coras lompair Eireann.

The Court noted that there was a lacuna in

the procedure dealing w i th appeals since

Section 18 of the Local Go v e r nme nt

(Planning & D e v e l o pme n t) A ct 1 9 83

conferred on An Bord Pleanala the right

where they are of opinion that any document

particulars or other information is necessary

for the purpose of enabling it to determine

an appeal to serve notice 'on any person w ho

is a party to the appeal or to any other

person w h o has made submissions or

observations to the Board as regards the

Appeal'. The 1977 Regulations did not deal

w i th the category of persons w h o had made

submissions or observations to the Board as

regards that Appeal but w ho were not

'parties to the Appeal'. The Court took the

view that this additional category of persons

did have rights and entitled to an appropriate

degree of protection in accordance w i th fair

procedures guaranteed by the Constitution.

The Court then reviewed the facts of the

present case and noted that the presecutrix

had received the Notice of Appeal and 'the

detailed grounds for appeal' and was able

to arrange for the Planning Consultants to

m a ke d e t a i l ed o b s e r v a t i o ns on t he

submissions already m a da In addition the

Planning Consultant had submitted further

observations arising out of the submission

made by the Ardmore Park Residents and

that the real complaint was that neither the

p r o s e c u t r ix nor her e x p e r ts had an

opportunity of commenting on the reply or

further submission by the Developer of 13

February 1986. The Court held that the

essence of natural justice was that it

required the application of broad principles

of commonsense and fair play to a given set

of circumstances in which a person is acting

judicially.

Wh at wo u ld be required must vary w i th

the circumstances of the case. At one end

of the spectrum it would be sufficient to

afford a party the right to make informal

observations and at the other constitutional

justice might dictate that a party concerned

should have the right to be provided w i th

legal aid and to cross examine witnesses

supporting against him. The Court had no

doubt that on an appeal to the Planning

Board - that the requirements of natural

justice fell within the rights of the objector

rather as distinct from a developer exercising

property rights, and that this flowed from the

nature of the interest w h i ch was being

protected, the number of possible objectors,

the nature of the function exercised by the

Planning Board and the limited criteria by

which appeals are required to be judged and

the practical fact that in any proceedings

whether oral or otherwise there must be

finality. The Court held that the real

substance of the objectors case was before

A n Bord Pleanala and duly considered by it.

The Court went on to say that it did not

accept any general proposition that An Bord

Pleanala could discharge its obligation to an

interested party by delivering part only of the

Applicants submissions to any person

entitled to receive the same, but that in the

present case the requirements of natural

justice had been met.

The State (Paula Haverty)

-v- An

Bord

Pleanala. High Court (per Murphy J.) 17 July

1987 - 11988) ILRM 545.

JOHN F. BUCKLEY

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