The Gazette 1975

While the number of applications for planning per-

mission tends to fluctuate in proportion to the

general- level of economic activity, in Ireland the

number of appeals has in fact continued to grow at

an alarming rate, and so has the cost of dealing with

them. As lawyers you will readily understand this if

I draw an analogy with the work of the Courts. If the

Higher Courts were to work on different criteria than

the Lower or were permitted to give capricious

decisions without assigning reasons, one could expect

every decision to give rise to an appeal. Likewise, if

two-thirds of those convicted by the Lower Courts

were declared innocent on hppeal, then one would

appeal in every case. Yet this is more or less precisely

the position which obtains with the "quasi-judicial"

proceedings, known as Plannjng Appeals. One wonders

that you, gentlemen, as lawyers do not rise up and

object to the use of the term "quasi-judicial" in this

context. Has the Incorporated Law Society addressed

itself to the question of whether its members should

brief Counsel to plead at such "quasi-judicial" hear-

»ngs, where the "quasi-judge" does not attend, is not

permitted to accept recommendations from his

representative, and is not bound to relate his decision

to the Development Plan or to the evidence

presented? It does the term of "judicial" no honour

that such proceedings should be described as "quasi-

Judicial".

2. The concept of planning under which the com-

munity, and members of the community, have a right

to influence the use an owner can make of his

property arises from new attitudes to private

property, new attitudes to society and an emerging

understanding of individual and collective responsi-

bility towards future generations. The resultant

modification of absolute ownership is widely accepted

by the body politic to-day. It tends, however, to be at

variance with Irish Case Law and indeed with the

attitude to Property enshrined in Article 43 of our

Constitution less than forty years ago. We must look

to the members of the Incorporated Law Society to

belp find a legislative way out of the immediate

problem which this poses or alternatively to propose

Constitutiona Amendments to resolve the dichotomy

m the longer term.

3. The Planning Bill currently before the Dail

continues to enshrine the principle of public partici-

pation in planning but Section 17 as currently drafted

" have the effect, in practice, of precluding the

public from participating. If Section 17 is adopted

m its present form, every appellant will be faced with

the possibility of an open-ended award against him,

° t alone of the legal costs of other parties but of

ny figures the Appeal Board chooses to state as its

°wn costs plus any "other expenses occasioned to

another party in relation to the appeal". This last

could include the loss of profits suffered by a

developer during the period taken by the Appeal

board to consider the matter.

The inclusion of the right of the Board at its

absolute discretion to award itself costs is contrary

to the best traditions of Irish Law and will almost

certainly give rise to unnecessary costly litigation.

The capacity to award the other expenses is in

fact discriminatory. Section 17 as it is drafted is

loaded heavily against the community and its environ-

ment. Developers, who stand to gain by successful

appeals, can afford the risk of having to pay the

environmentalists' costs on the occasions when they

lose. There is no possibility of a financial gain for

those who appeal with the interests of the environ-

ment at heart, although there is the possibility that,

on occasion, they may have their costs awarded to

them. The concept of the Board "not acceding the

substance to the appellants grounds of appeal" is also

loaded against the conservationists. For the developer

the decision will tend to be an open and shut one.

Either he gets his permission or he doesn't. For those

whose objective is to defendd the environment even

a minor change in conditions may well be of great

importance. While the conservationist can only hope

to claim his costs, the developer can, as the Bill is

drafted, claim his costs "or other expenses occasioned

to him in relation to the appeal".

As the Bill is worded a third party group, "even

if it be a prescribed body" can only be awarded its

costs or expenses when it is opposing the Planning

Authority's decision. It cannot be awarded costs or

expenses when it is supporting the Planning

Authority. This is surely not a desirable situation.

I have been told by Departmental Officials that this

is not what is intended, and that only the costs

directly related to the conduct of the appeal will be

awarded. If this is what is intended, then surely this

is what the legislation should say!

It has been argued that the Bill merely transfers tc

a Planning Appeals Board the authority previously

vested in the Minister and that the situation has not

proven unsatisfactory in the past. There are however

three vital differences. 1. The Bill gives the Planning

Board powers not previously vested in the Minister.

2. The Minister had to answer to the Dail and

ultimately to the electorate for the way in which he

used his discretionary powers. The Planning Appeals

Board will not be thus answerable. 3. The Planning

Board will have entirely new and adequate pro-

visions for dealing with vexatious or ill-founded

appeals under Section 16 of the Act. This gives the

Board an alternative solution to a potential problem

which was not available to the Minister in the past—

thus sharply reducing the need for the proposed

provisions of Section 17.

In view of the serious erosion of individual rights

which Section 17 involves and in view of its obvious

divergence from the better tradition of Irish Law, An

Taisce would urge the Incorporated Law Society to

consider Section 17 of the Bill and make representa-

tions to the Ministers for Justice and for Local

Government with a view to having it omitted or verv

drastically amended.